Normative Principles and Non-Territorial Autonomy

Abstract

This chapter asks the normative question whether non-territorial autonomy (abbreviated as NTA) should be implemented and, if so, why. In other words, it asks which normative principles, like the principle of equality or the principle of cultural preservationism, would demand NTA. As such this chapter places NTA in the debate on multiculturalism as it is conducted in the liberal tradition of normative political philosophy by authors like Yael Tamir, Will Kymlicka, Alan Patten and Brian Barry. The first section discusses what a principle of equality that demands the implementation of NTA would look like. This section points out a limit or a problem for the principle of equality as a legitimation of NTA. That problem is basically that the main alternative to NTA, territorial self-government, looks much more like, is much more equal to, a majority state than NTA. Hence using the principle of equality to argue for NTA requires one to explain why this principle nevertheless demands NTA. The second section discusses the principle of cultural preservationism in relation to NTA. This section tries to reappraise the heavily criticized principle of cultural preservationism. It does so because there is a close fit between this principle and NTA. The third section discusses group rights. Although not principles as such, liberal individualists often object to group rights on the basis of normative principles. Moreover, NTA is usually seen to imply group rights. This section points out the possible liberal defenses of group rights that an advocate of NTA might make use of.

Should non-territorial autonomy (abbreviated as NTA) be implemented and if so, why? Let us start by delineating the topic at hand. We are interested here in the debate on multiculturalism applied to national minorities as it is conducted in the liberal Rawlsian¹ tradition of the field of normative political philosophy. Contrary to the fields of political science or legal studies, this field is normative: it not only aims to describe institutions but also asks which institutions should be created. The central question of the debate on multiculturalism in this field is: Which institutions are owed to cultural minorities? Finally, we are interested in national minorities, so not in other cultural minorities, like religions or immigrants. Hence, the question is: Which institutions are owed to national minorities and might those be NTA institutions?

NTA is taken here to consist of the following list of institutions, which it gives to (minority) nations that it organizes non-territorially by means of a national register:

• a. some kind of language regime, possibly a language right,

• b. proportionality in the public administration,

• c. a national council that autonomously decides on cultural and educational matters, and

• d. some minimal powers, possibly only advisory powers, on matters that are not cultural or educational.

In the debate on multiculturalism applied to national minorities, there are multiculturalists, like Yael Tamir, Will Kymlicka,² and Alan Patten, who propose to give national minorities territorial autonomy (abbreviated as TA) rather than NTA. There are also liberal individualists, like Brian Barry, who are sceptical of most multicultural policies, including TA and NTA. All these authors propose and discuss normative principles, i.e. fundamental reasons for doing something, like implementing some institution. Examples of such normative principles are Rawls’s difference principle—which says that inequalities should benefit the least favoured—and the utilitarian principle—which says to aim at the greatest happiness for the greatest number of people. Normative philosophers discuss the internal consistency, plausibility, desirability, etc. of such principles. The idea is that, if there is a consensus about some principle, then citizens, politicians, and judges should take this into account and create the institutions to implement that principle.³ The normative principles that authors like Tamir, Kymlicka, Patten, and Barry propose might, in some other theoretical constellation, demand NTA or elements of NTA. We are interested here in what that constellation would look like. In short, we ask which normative principles are promising justifications for NTA.

Below we will consider two principles that possibly justify NTA: equality and cultural preservationism. Notice that there are other normative principles that may justify NTA. Charles Taylor’s (1994) recognition or perhaps some form of national collective autonomy are good candidates. However, a somewhat in-depth comparison of the principles of preservationism and equality and their application to NTA gives a good idea of what normative political philosophers do.

The first section shows that it is difficult to argue for NTA on the basis of a principle of equality; the second that it is easier to do so on the basis of a principle of preservationism. Most forms of NTA also use some kind of group right. Although group rights are instruments rather than principles, they are objected to on the basis of principles. Hence, the third section will discuss group rights.

5.1 The Principle of Equality as a Justification for NTA

One possible normative principle is that we owe nations some form of equality. Let us, first, have a look at a theory that proposes such a principle of equality. We will then discuss why it turns out not to be a very promising justification for NTA.

Proposing a principle of equality raises the question: equality of what? ‘Equalize the number of national members’ is, logically speaking, a perfectly consistent principle of equality. But it is not a very appealing one: some nations are just smaller. Hence, we need a theory that selects those things that need to be equalized between nations. The next step is to see that what we equalize needs to be substantial. That is so because we live in a nation-state world, which implies that states have a tendency to privilege the majority nation in all sorts of ways, including language regime, rituals, symbols, etc. (see, e.g., Tamir, 1993: 147). A principle of equality demands that we revoke or compensate those privileges and that implies substantial accommodations. Hence, our theory of equality needs to make a selection of the things that need to be equalized and what is equalized should be substantial.

Alan Patten (2014) has taken up the challenge of describing a principle of equality that consistently singles out substantial and morally relevant things for equalization. For Patten the kind of equality that is suited is equality of recognition and he sees recognition as—this is a simplification—specific kinds of accommodation by the state for a nation (Patten, 2014: 158). In short, Patten equalizes accommodations for nations. Let us take a closer look at an example of an accommodation that Patten would equalize. TA is such an accommodation. After all TA is nothing more than a set of decision-making powers attached to a polity. The majority has a polity in which it dominates the decision-making process: the state. Patten (2014: ch. 7) argues that, given that the majority has a polity that it dominates, the minority should also get a polity that it dominates. Patten suggests to give the minority a sub-state polity in which it is in the majority. The result is a federation with TA for the minority nation. The majority and the minority would be equally recognized if there is rough equality between the powers, functions, and responsibilities of the majority’s statewide polity and those of the minority’s sub-state polity (Patten, 2014: 248). See scenario A in Fig. 5.1 for an illustration of the equality of the minority’s powers and the majority’s powers in this kind of territorial federalism.

Fig. 5.1

(Author’s elaboration)

Equalizing powers only using TA, only using NTA, and using both NTA and TA

Now we can understand why a pure principle of equality is not very promising as a justification for NTA. Imagine that we try to equalize the powers of the minority’s non-territorial polity to those of the majority’s territorial polity, the state. We encounter a problem here: there is a cap on the powers that can be devolved to a non-territorial polity (this cap is illustrated by the red square in scenario B). Devolving too many powers leads to highly undesirable situations. Devolving, for example, the powers to decide on welfare benefits to a non-territorial polity leads to a situation in which members of a rich nation, who will have many welfare benefits, live intermingled with members of a poor nation, who will have few welfare benefits. Given that NTA ultimately also leaves individuals the choice which nation to belong to, we would then be institutionalizing something like nation-shopping. “This year I am French because they give ten extra holidays!” Obviously, this is undesirable. Thus, given this cap, it is not possible to equalize the powers of a non-territorial polity to those of the territorially organized state polity. Notice that this is not a problem for TA. Should we then conclude that it is impossible to consistently justify NTA on the basis of a pure principle of equality?

There are a number of ways to avoid the impossibility that was just mentioned. It is perfectly possible to combine NTA with TA. One then gives the minority both a territorial sub-state polity and a non-territorial polity, both with their powers. As is shown by scenario C, these powers combined might then be equal to the powers that the majority has in the statewide polity. But even then the question remains whether that is enough: the state’s powers are quite substantial. In any case, if we want to argue that national minorities are owed NTA on the basis of a principle of equality, then there needs to be rough equality between the powers of the state on the one hand and those of the national minority’s non-territorial and, possibly, territorial polity, on the other.

Another way of avoiding the impossibility described above is by combining the principle of equality with another principle and giving the former a subordinate role in the theory that justifies NTA. Indeed, it is perfectly possible to combine normative principles.⁴ One would then need an account that explains why one only treats some aspect of nations equally. A promising way of doing that in the case of NTA would be to see nations only as cultural and not as political communities. Otto Bauer’s (2000) work can certainly be a source of inspiration here. The challenge then seems to be that, as Tamir (1993: 147) argues, politics and culture are highly intertwined. In any case, it is possible to justify certain institutions of NTA, for example, the educational and cultural powers (c),⁵ by appealing to a principle of equality that is qualified by saying that it treats nations equally only as cultural and not as political entities. Other institutions of NTA, for example, the language regime (a), could then be further justified by appealing to another principle, for example preservationism, which we will discuss next.⁶

5.2 The Principle of Cultural Preservationism as a Justification for NTA

Another normative principle that may serve as a justification for NTA is cultural preservationism (see Table 5.1 for a comparison between the two principles). In what follows, preservationism will, first, be explained in relation to the criticism that it has attracted from liberal individualists. It will, then, be shown how NTA relates to it.

Table 5.1 Comparison between the principles of equality and preservationism as justifications for NTA

Which elements of a culture does preservationism aim to preserve? Several liberal individualists, including Barry (2001: 65–68, 255–258), have criticized cultural preservationism for trying to preserve cultures as they exist now, including their potentially outdated norms, values, practices, and ideas.⁷ There are ways around this objection and the core of Kymlicka’s theory shows one of those ways. Kymlicka (1989: 166–167) distinguishes cultural structure from cultural character, with the latter consisting of the norms, values, etc. that ought not to be preserved. He defines the “cultural structure” as a “viable community of individuals with a shared heritage (language, history, etc.)” (Kymlicka, 1989: 168). Notice that norms and values may change while the heritage and the viable community remain intact. In short, Kymlicka avoids the liberal individualist objection by only trying to maintain the structure and not the character of a culture.

Another but related liberal individualist concern regarding preservationism is that it forces a worldview—a conception of the good, to use the technical term—upon individuals (see, e.g., Barry, 2001: 123–131). If so, then preservationism would be incompatible with Rawlsian liberalism, the mainstream tradition of normative political philosophy. Rawls (1971: 136–142) presents his theory in terms of a veil of ignorance. Simplified this can be explained as follows. An institution would be just when people with different worldviews (the coloured bars in Fig. 5.2) would choose that institution behind a veil of ignorance, which makes them ignorant about the worldview they would hold in the actual society. In other words, if you do not know which coloured bar is your worldview, then you will choose to base institutions only on the black circle through which all coloured bars run. Behind the veil of ignorance, I would, for example, not design institutions such that they disadvantage Catholics, since I myself might actually be a Catholic. The result is—to put it simply—state institutions that are based on a sort of lowest common denominator of all different worldviews (the black circle in Fig. 5.2). Liberals worry that cultural preservationism stems from a particular worldview (the green rectangle in Fig. 5.2) that gives moral worth to cultures. As such that worldview would not be part of the lowest common denominator between worldviews. After all, there are worldviews that do not give moral worth to cultures. Hence, a state imposing preservationist policies can, according to liberal individualists, not be justified.

Fig. 5.2

(Author’s elaboration)

Just policies, according to liberalism, are based on the lowest common denominator of different worldviews

Kymlicka has also provided an argument that may bring cultural preservationism into the lowest common denominator between worldviews. He starts his argument with the value of individual autonomy, which is, of course, very important to liberals. Kymlicka (1989: 165; 1995: 83) argued that cultural membership is important for individual autonomy because culture provides us with the spectacles through which we see options for life choices, through which these options become vivid and meaningful to us.⁸ In other words, individuals need their culture to be truly autonomous: not so much to have options but to really see them. Hence, liberals should, if Kymlicka is right, also accept preservationist policies as being just.

Liberal individualist worries remain. There are plenty of individuals who choose to assimilate into another culture and thus arguably do not need their native culture to be autonomous. This raises the question whether a state may impose duties on them to preserve their own culture. Notice how NTA’s national register could provide a solution here. One of the popular solutions to liberal worries about the state imposing a worldview is a right to exit. Chandran Kukathas has famously argued that we can tolerate almost everything that cultures impose on their members, so also preservationist policies, as long as people have a right to exit their culture.⁹ One problem with such a theory is that, even if one has the right to exit, it may still be too costly to exit because, in the case of many cultures, one has to move to effectively exit these cultures. This is much less troublesome to NTA. Exiting in NTA does not require one to move, it is just a matter of registering under a different nationality. Perhaps, then, with a national register, liberal individualists might give a form of cultural preservationism, embedded in strong liberal institutions, a second chance.

Notice, finally, how well cultural preservationism and NTA fit together. Many of the institutions of NTA can be justified by the principle of cultural preservationism. That is obviously so for the language regime (a). One may wonder why the proportional, in other words the equal, filling of positions in the public administration (b) is necessary. But notice that we are preserving a minority culture that lives intermingled with a majority culture and that the state does not, apart from its administration, have very many tools at its disposal to preserve a language threatened by this mingling. When it comes to powers on educational and cultural matters (c), notice how heritage is part of the cultural structure according to Kymlicka. In a way, one can see these powers as the management of this heritage. That leaves the minimal or advisory powers on other matters (d). Preservationism actually explains this best. It often happens that a majority culture cunningly designs a policy in some field other than education or culture that happens to have the side effect of damaging the minority culture. The minimal powers are intended to avoid this. But they remain minimal: they are intended not to satisfy a principle of equality but to satisfy cultural preservationism, i.e. to ensure the preservation of a culture.

Preservationism has received much criticism. But, if we are interested in NTA, we should take it seriously. All the more so because, as will be argued below, it might be suited to certain liberal individualist criticisms. In any case, if we are looking for one principle that by itself can justify NTA, then preservationism is probably our best bet. Like with the principle of equality, we might, of course, also be looking for a combination of principles.

5.3 Group Rights and NTA

Multiculturalists want to meet the demands of cultural groups. A strong and promising way of doing so is by using group rights. Group rights are instruments rather than normative principles. Nevertheless, they should be discussed here because liberal individualists believe they can be objected to on the basis of normative principles—hence they are individualists. There are many forms of group rights. We will focus on two representative ones and compare them to individual rights. Subsequently, we will turn to NTA and ask which kind of (group) right is best suited to NTA.

What is your intuition about how far language preservation policies may encroach upon individual rights? Imagine you are one of the last speakers of the Guugu Yimithirr language. This Australian Aboriginal language is very interesting on account of it being extremely space conscious. What other languages would express with “left” or “right”, this language expresses by using the cardinal directions north, south, east, and west. Hence, speakers are always aware of the cardinal direction of themselves and their surroundings. This language seems to be something that is intrinsically valuable. Suppose it is 2100 and you are the youngest of the only four speakers that are left. If you stop speaking this language, it is almost certain to die out. Should you be forced to speak it? If your moral intuition says you cannot be forced then consider the following questions. Are there no actions, like sending your children to a certain school or living in a certain neighbourhood that you may be forced to do? If your moral intuition says that you can be forced, then consider the following question. Are there actions that you may not be forced to do, perhaps spend the rest of your days in a linguist’s laboratory undergoing tests? You may also want to consider the following questions. Does it matter that this is a very special language? Should there be a way to opt-out, to escape the duty to do something for your language? To what extent is this case similar to a language with half a million speakers? What would be necessary to preserve such a language?

Strong group rights, which the foremost specialist on group rights, Peter Jones (1999: 361–367; 2016: section 4), calls corporate rights, give moral status to (a good of) a group. To explain this moral status, think of what it would mean for (a good of) a group to have intrinsic value. Corporate rights usually imply that a good of a group, for example, a language, is valued intrinsically. The language is not just valued instrumentally because individual group members value it. It is valued intrinsically, on its own, irrespective of what people think of it. In other words, it has moral status. Liberal individualists have found much to criticize in corporate rights. One common criticism is reminiscent of the liberal criticism of preservationism that we saw above. To understand this criticism, notice how it is impossible for individual rights that protect a sphere of individual freedom to directly impose a worldview. After all, such individual freedom rights only give more space to citizens in which to live out their own worldview. As such individual rights can perform a function that liberal individualists think is essential to rights: the function of a bulwark against the state imposing worldviews. To the contrary, it is possible for corporate rights to impose a worldview. After all, an individual speaker of a language that is protected by a corporate right might not agree with the moral status that this corporate right gives to her language. Hence, corporate rights no longer have the function of a bulwark, which liberal individualists believe is essential to rights.

There is one case in which strong group rights, like corporate rights, may still be liberal. That is in the case of a specific kind of goods: what Denise Réaume calls participatory goods.¹⁰ What is special about these goods is that the state cannot hire someone to enjoy producing these goods with me. Take, for example, languages, the prime example of participatory goods. The state cannot hire someone to enjoy speaking a language with me, to keep a language community vibrant. As Réaume (1988: 10) says, “the enjoyment is the good”. Réaume (1988: 2) argues that, if we want to grant a right to a participatory good, then we need to grant a group right. Several philosophers, including liberals, recognize the existence of goods like participatory goods, calling them “communal”, “shared”, “common”, or “irreducibly social goods” (see Jones, 2016: section 5). Most of them also believe that these goods should be protected by some form of group right. Notice also that if such goods exist and Réaume is correct in saying that a right to such goods needs to be a group right, then liberalism would be discriminating against worldviews that rely on such goods. Many liberals will, then, want to be able to grant rights to them. So, perhaps, in the case of a participatory good, like language, also liberals should recognize strong group rights¹¹, like corporate rights.

Let us turn to the second, weaker form of group rights: Jones’s own collective conception, which he calls collective rights (Jones, 1999: 356–361; 2016: Sect. 4). Collective rights are justified not by granting (a good of) a group some moral status, but by the shared interests of all the group members. Take, for example, someone who wants a park in her neighbourhood. One person alone may not have a right to a park: her interest in the park may not be of sufficient weight for the authorities to have to build it. The interests of all the people that would use this park may, however, weigh enough for the authorities to have to build it. Thus, the shared interest of all park-users creates a right, whereas an individual interest in the same thing would not create that right. If we allow for collective rights, then we allow for shared interests to create rights that individual interests on their own might not create. Notice that collective rights thus largely answer the liberal worry about group rights imposing a worldview. A collective right cannot be used to impose a worldview on the group members (Jones, 1999: 370–373). Either an individual group member has an interest in the performance of the duty that is demanded by the collective right or the individual does not have that interest. In the latter case, the individual’s interest is not used to add to the justification of the group right and the individual is automatically not part of the ad hoc group.

Finally, next to corporate and collective rights, there are also individual rights. Let us compare these three kinds of rights to each other (see also Table 5.2). Take a case in which either a corporate, a collective, or an individual right of person A has to be weighed against some right of person B. And while we are at it, let us immediately apply this to NTA institution (b): proportionality in the public administration. Take A’s right, possibly a group right, for there to be translations of certain documents, which enables this proportionality. B, A’s superior, would rather not bother with such translations. Suppose that the law is not altogether clear. There is a law which stipulates that there should be proportionality but does this mean a right to the translation of these documents? Finally, suppose that A sues B for not providing translated documents. Put yourself in the position of a judge confronted with such a case and have a look at the relevant interests of both persons, which you will have to weigh against each other. A good way of understanding the different conceptions of (group) rights is to see that one could give different answers to the question which interests, on A’s side, should you, the judge, look at? In other words, whether collective or corporate rights or only individual rights are allowed has an impact on the kind of interests on A’s side that you may take into account. If we only accept individual rights, then the only interests that you should look at are the interests of person A.¹² If we accept collective rights, then you should add to A’s interests those of X, Y, and Z, i.e. other minority members that also deal with the documents in question. If we accept corporate rights, then you should, next to taking into account A’s interest, also take into account an interest that is attached to A’s group, the survival of the language, for example, rather than to A herself. Thus, the interests on A’s side that may be taken into account get heavier when we go from only individual to collective and corporate rights. With only individual rights A is more likely to lose the case, with a corporate right A is more likely to win. This explains, the appeal of group rights, perhaps even corporate rights, to multiculturalists.

Table 5.2 Comparison between individual, collective, and corporate rights

Let us apply all this to the specific institutions of NTA and ask which kind of right is best suited to which institution. The language right (a) is similar to proportionality (b), which was just discussed. As we have seen, individual rights are weak, perhaps too weak. Collective rights are substantially stronger. The strongest possible language right is a corporate right. The advantage of collective rights over corporate rights is that they are better protected against being used to impose a worldview. In the case of decision-making powers, whether they be minimal (d) or on educational and cultural matters (c), the reasoning is somewhat different. If we want to give rights to such powers, then they are probably collective or corporate rights.¹³ Such powers are hard to imagine as individual rights. Again, collective rights provide stronger protections against imposing worldviews. Seeing such powers as corporate rights has the advantage of recognizing the group as a unitary entity that stands on a par with other similar groups. Seeing them as corporate rights also makes it easier to give due consideration to the interests of future generations. Finally, notice how it is perfectly possible to combine the different kinds of group rights just explained. Hence, we could understand parts of NTA as corporate, other parts as collective and still other parts as individual rights.

NTA has been presented here as possibly being in line with preservationism and corporate rights which are—to put it lightly—strongly criticized by liberal individualists. It is, however, important to understand this criticism correctly. For, NTA has something in common with liberal individualism. What certain liberal individualists, like Barry, object to is much wider than merely strong group rights. Barry (2001: 7–8, 325–326) objects to the replacement of an egalitarian politics of solidarity, or redistribution, with an identitarian politics of difference or recognition, in short, with multiculturalism. He fears that group rights will open the floodgates to that politics of difference.¹⁴ Barry argues, for example, that multicultural policies politicize group identities (Barry, 2001: 234); that they give potentially conservative elites of a group the coercive powers of the state (Barry, 2001: 129); and that they give cultural entrepreneurs an organizational nucleus from which to launch themselves into the political sphere (Barry, 2001: 197). Barry would seem completely opposed to NTA. Oddly enough, however, the intellectual fathers of NTA, Karl Renner, and Otto Bauer, could not agree more with Barry here. They were Marxists who aimed at “solving” the national question so that it would no longer interfere with their preferred politics of solidarity. How can we understand this? Suppose that minority nations will wake up—to slightly alter Bauer’s (2000: 176–193) phrase—and thus that the liberal individualist dream of being able to ignore minority nations proves to be mistaken. What Barry then is telling us, is to accommodate minorities in a parsimonious and targeted way, a way that contains the politics of difference. One corporate right better fits such a parsimonious strategy than several sprawling collective ones. Similarly, one clearly defined aim, preservationism, better fits this parsimonious strategy then the sprawling consequences of the principle of equality.

In conclusion, there are many possible combinations of principles and instruments. Furthermore, they can be combined to result in a pure form of NTA, NTA combined with TA, or just some non-territorial institution. If our aim is to justify NTA, then some strategies—like a pure principle of equality—are implausible, and some strategies—like preservationism and corporate rights—are more plausible than is often assumed.

Summing-Up

• A pure principle of equality proposes to equalize the powers given to the majority’s polity with those given to the minority’s polity. There is, however, a cap on the powers that can be given to a non-territorial polity. Hence, justifying NTA based on a pure principle of equality seems less promising.

• The principle of preservationism says that cultures need to be preserved. It has received much criticism from liberal individualists but it is still defensible. NTA fits well with preservationism.

• There are several versions of group rights. Two representative ones are corporate and collective rights. An advantage of corporate group rights is that they enable us to grant rights to participatory goods. An advantage of collective rights is that they cannot be used to impose a worldview on group members.

5.1.1 Study Questions

• 1. Should minority nations get accommodations and, if so, why? Should they get them in order to preserve their culture or in order to be equal in some way to the majority?

• 2. If your native language is at risk of withering away, do you have some obligation towards it? Should you send your children to a native language school? May you be forced to do so?

5.1.2 Go Beyond Class

The Stanford Encyclopedia of Philosophy is a well-respected encyclopedia that is available online and often used in research papers. It is a good place to start researching a philosophical question. It has entries on, among many other things, multiculturalism, and group rights.

5.1.3 Further Readings

• 1. Barry, B. (2001). Culture and Equality: An Egalitarian Critique of Multiculturalism. Harvard University Press.

• 2. Bauer, O. (2000). The Question of Nationalities and Social Democracy [First published as Die Nationalitätenfrage und die Sozialdemokratie in 1907] (E. Nimni Ed., J. O’Donnel Tran.). University of Minnesota Press.

• 3. Jones, P. (2016). Group Rights. In E. Zalta (Ed.), The Stanford Encyclopedia of Philosophy, Retrieved September 6, 2022, from https://plato.stanford.edu/archives/fall2022/entries/rights-group/

• 4. Kymlicka, W. (1989). Liberalism, Community and Culture. Oxford University Press.

• 5. Nimni, E. (ed.). (2005). National Cultural Autonomy and its Contemporary Critics. Routledge.

• 6. Patten, A. (2014). Equal Recognition: The Moral Foundations of Minority Rights. Princeton University Press.