6.1 The problem of multiculturalism

The notion of multiculturalism has been launched within the debate of political theory by the groundbreaking essay by Charles Taylor “The Politics of Recognition”, published in 1992.¹ The concept has subsequently received systematization and integration within a liberal framework by Will Kymlicka’s influential volume Multicultural Citizenship.² During the next stage of the history of this new concept, a plurality of critical voices come to challenge the paradigm tentatively proposed by Kymlicka: these critiques are articulated from a variety of standpoints, including deliberative democracy (Benhabib), “interculturalism”, postcolonial studies, cultural studies, liberal feminism (Moller-Okin).³ Starting from 2002, a new twist has been impressed onto the discussion of multiculturalism: at the center of attention is now the acceptability of “multiple jurisdictions”. Against the background of an intersubjective view of the self, according to which the self emerges at the crossroads of a plurality of webs of interlocution and relations of recognition, the idea that underlying a democratic public space a unitary jurisdiction reflecting monocultural assumptions should operate has been first thrown into question by Ayelet Shachar’s volume Multicultural Jurisdictions and then launched in the public sphere by the famous pronouncement of Rowan Williams, former Archbishop of Canterbury, in February 2008.⁴ More recently, the discussion on multiculturalism has undergone a new turn. Will Kymlicka has provided a broader picture of the historical trajectory of multiculturalism worldwide and a defense of his original liberal version of multiculturalism from the accusation of essentialism.⁵ In her Multiculturalism without Culture, Anne Phillips has argued that a multicultural position can be articulated, which

Concretely that means a kind of multiculturalism in which the power exerted by a minority’s elite – usually the elder male members – in defining what lies within and without the bounds of the group’s culture, tradition or identity is counterbalanced not simply by the right to exit granted to each individual (as in Kymlicka’s and Shachar’s versions), but also by a right to voice.⁷ The right to exit implies – as Phillips recognizes – a loss on the dimension of one’s sense of identity and belonging that the right to voice, if sustained through adequately designed institutions and procedures, may help to compensate.

In order to formulate a definition of multiculturalism not as a judgment on specific policies but as a general problem in political philosophy, we need to clear away a number of side issues that often are treated in conjunction with multiculturalism, but do not help to clarify what is at stake. First, the question of multiculturalism ought not to be conflated with the problems connected with the social impact of racism, xenophobia, resentment and marginalization in societal contexts where a rapid increase in immigration is underway. Multiethnicity is a factual phenomenon: it consists of the simultaneous co-presence, within the same political space, of human groups integrated by different cultures. There existed multiethnicity before the rise of the modern concept of culture as a shared set of beliefs, norms and collective memories, as well as before the rise of the modern state. There existed multiethnicity in the polis and in the ancient empires. And in the contemporary world system, as Kymlicka has pointed out, just comparing two figures – 193 states represented at the UN General Assembly, but over six thousand distinct languages – indicates that almost no domestic political space (with the exceptions of North and South Korea and Iceland) exists that is not exposed to the challenge of multiethnic coexistence. This ubiquitous reality raises the normative question: How should relations be regulated between the diverse cultural groups present in the same political space?

Historically, the answer by far most frequent has been: these relations should be regulated according to the respective influence of the groups, which inevitably has resulted in meaning that the normative intuitions underlying the culture of ethnic or religious majorities have found an easier, if not exclusive, way into the law and institutions of the society. Thus the most common predicament has been one in which citizens who belong to the cultural or religious majority have benefited from a desirable continuity between their traditional way of life and the law, whereas those citizens who belong to the various minorities usually suffered from a correspondent misalignment: they were forced to adopt alien patterns of conduct if they wanted to be good citizens and sometimes just simply be law abiding. This is the ubiquitous pattern, called “constitutional nationalism” by James Tully,⁸ that has accompanied the formation of the modern states: it has led English culture to assert its hegemony over the Scottish, the Welsh and the Northern Irish ones, Parisian culture to prevail over the rest of France, the culture of Piedmont and later of the whole of Northern Italy over the rest of the country, and Castilian culture over the Catalan, the Basque and other cultures present in Spain. From this process, the democracies we inhabit, implanted onto a nation-state, have developed. Yet, can we take this widespread pattern as a normative standard for the democracies of the future? Can it stand the test of political justification?

The most important alternative to this pattern has been, historically, the “millet” system that characterized the Ottoman Empire. During the centuries that spanned between 1456 and World War I, this empire, which included most of the Middle East, North Africa, Greece and Eastern Europe, witnessed the peaceful coexistence of a Muslim majority and the Christian Orthodox, Armenian and Jewish minorities. Each of these minorities included several local administrative subunits, governed by an orthodox patriarch or a rabbi, and was free to regulate its own internal affairs, education, religious services, the property of religious buildings and several other matters within the bounds of a number of limitations set by the majority: members of minorities could not proselytize, they could not build new churches without a special licence, and interethnic marriages were subject to limitations. As Kymlicka eloquently points out, in this kind of “theocratic federalism”, a kind of peaceful multiethnic coexistence without equality and with very limited individual rights was realized, but “there was little or no scope for individual dissent within each religious community, and little or no freedom to change one’s faith”.⁹

What we now call multiculturalism is a model for multiethnic coexistence that cannot be reduced to either of these patterns. We simply cannot accept, consistently with our intuitions concerning the nature of a democratic polity based on a constitutional pact subscribed to by free and equal citizens, a situation in which one cultural group among the many coexisting in the polity becomes hegemonic, monopolizes the public space with its symbols, mores and normative intuitions, inscribes segments of its conception of the good into the law, and through the law imposes these intuitions through the force of legal sanctions and furthermore uses the public sphere for targeting the other cultures with symbols and attestations of denigration. From our own uneasiness with this prospect, the idea has arisen – formulated for the first time by Taylor in “The Politics of Recognition” – to construct, in analogy with the idea of the equality of all citizens before the law, a new kind of democratic polity where all the cultures through which groups of citizens identify themselves be attributed “equal dignity” or “equal respect”, while avoiding the slippery terrain of a condescending attribution of “equal value”. Political philosophy is called on to reflect on the meaning and the justification of multiculturalism so understood and on the guidelines of its realization in our societies.

Furthermore, we often hear the suggestion that the term interculturalism should be substituted for multiculturalism. Interculturalism would convey the idea that groups steeped in different cultures must find ways of living together without insulating themselves in opposing enclaves. This line of thinking is widespread in Europe, where distrust toward multiculturalism has been strong, but has also been recently accredited by Taylor. As he puts it, “if multiculturalism in the generic sense includes policies which both aim at recognition of difference and integration, one might argue that the prefix ‘multi’ gives greater weight to the first goal – acknowledging diversity – while ‘inter’ invokes more the facet of integration”.¹⁰ Suggestive though this way of capturing a difference in emphasis might be, on closer inspection it is not easy to understand in which sense an intercultural integration that remains a two-way process and not a one-way assimilation of the minorities to a majority would be any different from the multicultural attribution of equal dignity to all cultures present in a political space and to the multicultural provisions ensuring that such dignity is adequately protected.

In the European context, interculturalism or interculturality often designates a less specifically political-philosophical category and becomes a central concept in a general philosophy of subjectivity or in the philosophy of education.¹¹ A philosophy of interculturality purports to clarify how cultural identities always arise and develop in interaction with one another and in this process reciprocally transform one another. At a deeper level such philosophy also aims at clarifying how, if we wish to understand how the human subject comes into being, we must conceive of identity and difference as related and presupposing each another. I find it somewhat puzzling, however, to bring together under the same heading a discussion of multicultural policies and of the general justification for a multicultural approach, on the one hand, and a discussion on the nature of subjectivity, on the other. We could certainly draw on such an intercultural understanding of the constitution of subjectivity in order to justify a multicultural understanding of democratic citizenship and its policy specifications, but such a short-circuit would end up putting political justification at the mercy of comprehensive conceptions that are certainly not free from contestation.

Thirdly, we should be wary of understanding multiculturalism as a reformulation of the problem of toleration, in this case as a question of cultural, as opposed to religious, toleration. The analogy could be tempting at first sight. Also in the classical case of religious toleration we must address the challenge of reconciling diverse practices in a public space where no one is to suffer from discrimination and of discerning which practices may be accepted and which instead should be banished as incompatible with the idea of a nonpartisanship, or laicité, of public institutions. At closer inspection, however, the analogy appears misleading.

In his Letter Concerning Toleration, John Locke formulated a concise principle for helping us to identify the proper boundaries of the tolerable. Each church, he argued, must be free to regulate its rites and ceremonies as it sees fit, provided these consists of acts that do not violate the existing laws. No church, instead, can legitimately require rituals that include acts in violation of the law: “those things that are prejudicial to the commonweal of a people in their ordinary use, and are therefore forbidden by laws, those things ought not to be permitted to churches in their sacred rites”.¹² However, a conspicuous difference between Locke’s context and ours is immediately evident. Whereas Locke’s principle requires that the practices to be tolerated not be inconsistent with the existent law, when we address the acceptability of certain culture-specific practices we are implicitly raising the question whether the ideal of toleration requires us to exempt certain ethnic communities from certain legal obligations. Is it acceptable to exempt the members of the Sikh community from the obligation to wear a helmet when driving a motorcycle? Are restrictions on the alienability of property, which have been granted to native communities, acceptable? Are restrictions on the freedom of Québécois parents to educate their children in English speaking schools acceptable? Is the reduction of mandatory schooling requested by the Amish community acceptable? The problems raised by contemporary multiculturalism almost always take the form of requests for the authorization to take exemption from the norms binding on all other citizens. This discrepancy suggests how drawing an analogy between religious toleration and cultural toleration may be problematical.

Furthermore, another element of asymmetry consists of the fact that whereas it is always in principle possible to conceive of the religious neutrality or laicité of the democratic polity and its single institutions (where neutrality concretely means equi-distance from the diverse religious denominations present in the communal political space), when multicultural questions are concerned sometimes it is not only practically difficult to implement the idea of equal dignity or respect, but even in principle the idea of a neutral solution makes little sense. State institutions can avoid displaying religious symbols, or can replace the religious language of public oaths with a secular one, but certainly cannot avoid using a language for their purposes. And when the state uses a language for certain functions – for instance, in education or in its courts – implicitly, it bestows extra legitimation and public recognition on the official language that it is using.¹³

Fourthly, the question of multiculturalism must be kept distinct from the problems relating to intercultural dialogue among peoples and the world religions on a global scale. These problems surface when, for example, we are concerned with providing truly universal foundations for human rights. Does the Universal Declaration of Human Rights embed cultural presuppositions that fail to fully resonate with non-Western cultures? After all, the relevance of this question, regardless of the answer we give to it, is attested by the sedimentation, over decades, of several documents and declarations on human rights, such as the Cairo Declaration on Human Rights in Islam, adopted by the Islamic Conference of Foreign Ministers in 1990, or the Bangkok Declaration on Human Rights of 1993, which started the debate on Asian values. However, there exist good reasons for not including questions such as these within the debate on multiculturalism. For one thing, the lack of a full-fledged global rule of law makes it so that the translation of declarations of principle into enforceable legislation is less stringent than in the domestic case, and therefore the discussion is also more on fundamentals than on the concrete policies that can ensure equal respect for the members of all the cultural groups.

Once we have cleared our discussion of multiculturalism from these issues, certainly related to our object but that do not contribute to sharpening our focus, it remains to be formulated, in a positive vein, what multicultural questions amount to. I suggest that we understand the problem of multiculturalism as a special case of the problem of “political justification” or of the legitimacy of a liberal-democratic polity. More specifically, considering that liberal and democratic constitutionalism has come into being in opposition to the society of rank and honor, where prerogatives were assigned to citizens according to their ascriptive qualities, and considering that liberal and democratic polities are grounded on a normative core providing for the equal liberty and equal dignity of all citizens, how are we to make sense of the fact that a few centuries thereafter we have come to contemplate the possibility of returning to differentiate the gamut of the rights and prerogatives of citizens on the basis of their belonging to some cultural or ethnic community? What justification can be offered for attributing rights on a basis differentiated according to ethnic lines? And, finally, how does this form of political justification relate to the liberal-democratic tradition, which revolves around the equal dignity of all citizens?

6.2 Justificatory arguments for multiculturalism

In this section four distinct justificatory arguments will be examined in support of adopting the multicultural perspective as a general framework for multicultural policies. I believe that, after nearly two decades, the most complete and clear reconstruction of the possible arguments in support of multicultural policies is still the one offered by Will Kymlicka in Multicultural Citizenship. I will briefly recall it and will add some extra commentary. The first possible argument proceeds from the intersubjective constitution of subjectivity, the second from the value of maximizing diversity in society, the third from equality and the fourth and strongest one from the value of freedom.

The first justificatory argument in favor of multiculturalism as a framework for policies aimed at promoting the equal dignity of all the cultures embraced by the citizens of a democratic polity proceeds from the premise that in our philosophical horizon the meaning of subjectivity has changed. If the identity of a person is no longer understood, like in traditional atomistic views of the self, as the product of an “inner nature”, whether transcendentally or naturalistically understood, but quite differently is conceived as the precipitate of a web of intersubjective relations of recognition or of “webs of interlocution”¹⁴ that enable us to perceive ourselves through the eyes of others and to take an autonomous stance vis-à-vis what we see reflected in that gaze; if supposedly we are what we are not by virtue of an internal essence that manifests itself, but rather by virtue of seeing ourselves through the gaze of those with whom we interact (first the immediate circle of our family members, later the “generalized other” of our social life); then respect for the dignity of the individual so conceived requires that the conditions for the coming into being of that individuality – including the conditions that enable these intersubjective relations to unfold, last over time and flourish – be socially protected and publicly respected. Because these constitutive relations between self and other are not merely “procedures”, but embed ethical intuitions shaped and expressed by culture, a further consequence of this intersubjective conception of the subject is that real respect for the dignity of the individual means to protect the individual not just “individually”, as it were, but taken with the whole web of affiliations and relations of recognition which make him what he or she is. Hence the justification for a right of individuals to obtain respect for their own culture and to obtain provisions that protect its survival, whenever it might be in danger.

Suggestive though this justificatory argument for multiculturalism might be, it has the shortcoming of appealing to a “comprehensive” conception of subjectivity that may be contested by those who subscribe to alternative conceptions, for example, to the one embedded in the philosophy of mind, in the classical transcendental paradigm and in some versions of the phenomenological paradigm. Furthermore, as Seyla Benhabib has observed, even though we might share the idea that human subjectivity is formed at the crossroads of “webs of interlocution”, from such a general thesis no indication can be derived concerning “which webs of interlocution” should be normatively prioritized and “in which circumstances” and “by whom”.¹⁵ The identification of which life forms should be protected thus requires an additional argument, usually not provided by those who, like Taylor, adopt this justificatory strategy. Regardless whether such identification is left open to a deliberative process or anticipated by political philosophy in a freestanding way, from the thesis of the intersubjective constitution of subjectivity no indication automatically follows as to which “cultural webs of interlocution” and which of their specific practices should be protected.

A second justification for multiculturalism, often articulated from a postcolonial, postmodernist perspective but also to be found in the camp of “fervent liberalism” (exemplified by Jeremy Waldron’s ideal of a mélange of cultural meanings loosely assembled in each individual life, and by Kukathas’s idea that the right to exist, where strictly respected, automatically grants legitimacy to existing relations among groups whose identities are political, not cultural, constructs),¹⁶ sometimes appeals to cultural diversity as a positive value and a normative standard. In a complex society, cultural diversity as such constitutes a value and normative standard insofar as it contributes to the richness of individual life by way of increasing the range of choices at the individuals’ disposal. As Kymlicka points out, this strategy for justifying multiculturalism offers many advantages. Differently than the previous one, it is entirely internal to the mainstream of the liberal-democratic tradition: because traditional perfectionist liberals certainly do prize expanding the range of individual choice within a cultural horizon, they could also prize expanding the range of available choices across cultural divides. Furthermore, this form of justification for differentiating rights according to cultural affiliation has the Madisonian advantage of “economizing on virtue”, by appealing not so much to the sense of justice of the members of the prevailing cultural group, but to their interest in maintaining a culturally diverse social environment. The argument based on the value of diversity promises to reconcile (cultural) rights and social utility.¹⁷

However, this argument for justifiying multiculturalism is vulnerable to four objections. First, intracultural and intercultural diversity are not on the same plane. Moving across cultural niches within the same societal culture is not as burdensome as moving across cultures. Thus intercultural diversity increases the range of available choice only virtually, whereas the increase of intracultural diversity offers viable options. The presence of many Hindu or Buddhist symbols in a Western society, one could argue, does not expand the range of my choices in the same way as the symbols of a vegetarian subculture do, because it is hard to imagine that conversion is a real option for many people. Second, costs and benefits are asymmetrically distributed: for the majority that is not benefiting from multicultural provisions, the advantages of living in a diverse society are “spread thinly and widely, whereas the costs for particular members of the majority are sometimes quite high”.¹⁸ In Canada, for example, the advantage of having a plurality of life forms is less pronounced for every member of the English-speaking majority than the converse disadvantage of not being allowed to use one’s own native language in a number of work situations in Quebec. Third, if the positive effect of multiculturalism consists of its promoting diversity, taken as a value in and of itself, why should this positive aspect be obtained by preserving the existing minority cultures, as opposed to letting them fend for themselves and attracting instead new ethnic groups with new cultures via special incentives? Fourth, if the presence of diversity is a benefit for the whole of society, including the various ethnic minorities, why adopt multicultural measures and not call also on the citizens affiliated with minority cultures to pay their dues – for example, by way of giving up on certain requests for multicultural recognition of religious festivities or for special dress codes – for maintaining diversity?¹⁹

There remain two strategies for justifying multiculturalism, which are by far less vulnerable to objections than the ones hinging on the intersubjective constitution of subjectivity or on the value of diversity and also offer the advantage of a strong continuity with the liberal-democratic tradition in that they hinge on two values such as equality and freedom.

Equality, if understood as equal treatment for all the citizens of the state and thus as one of the highest ranking public values – if not equivalent to Dworkin’s “supreme virtue”²⁰ – certainly cannot limit its normative efficacy to the area below the threshold of cultural difference. Equality cannot but enjoin us to pay due respect to the value of being rooted in one’s own culture, and this specific good must then be distributed in an equal way to all the members of society and not just to the subset of those belonging to a majority culture. From this normative premise the obligation derives to allow the members of minority cultures to use their own language in public transactions, to the believers of various religious confessions to celebrate their own festivities, to the members of all ethnic groups to preserve and abide by their own dress codes and dietary obligations in all situations and public institutions. Equal treatment and equal respect are not subject to contestation in principle within all liberal-democratic contexts: they are building blocks that have definitional value for democratic regimes. As values, they are irrecusable for any political regime that wishes to be recognized as democratic. It would be inconsistent for anyone to think that such values would then turn mysteriously inoperative when the public treatment of cultural minorities is the issue.

Finally, it is possible to justify multiculturalism as a framework for policies on the basis of the most quintessential of all liberal-democratic values: freedom. The argument unfolds in four stages, here briefly anticipated. First, to defend freedom in a liberal-democratic sense certainly must include a defense of freedom of individual choice. Second, after Wittgenstein’s critique of the meaninglessness of the idea of a private language and of understanding whether a rule has been followed independently of grasping a life form, the options over which freedom of choice is exercised cannot be conceived of as private creations of an individual. Third, these options must then be understood as the disjunction of alternative aspects internal to distinct societal cultures. Fourth, to protect individual freedom of choice then must include protecting the availability, for the individual, of a plurality of real options between and within diverse societal cultures. Let us now take a closer look at these points, in succession.

Freedom, whatever is meant by this term, must at some point include the possibility of choosing between different actions, namely, between observable doings to which diverse meanings are assigned. Drawing on Max Weber, to understand an action means to grasp the intention that has motivated its accomplishment. Drawing on George Herbert Mead, however, in order for there to be social inter-action proper, as opposed to a series of stimulus-response couplets, it is necessary that the meanings associated with actions be interpretable also by third parties who are spectators and not participants.²¹ I see someone in front of me in a line at the cashier of a bar taking his wallet out of his pocket and I think: OK, now he is about to pay his check. These meanings are then shared meanings: they are part and parcel of shared codes that bestow relevance, importance, decipherability, shareability on them. To know how to decode them depends on inhabiting a culture, belonging to it, or – in another vocabulary – to participate in the same life-world.

Thus, when we say of actors that they choose between line of conduct A and line of conduct B, or between engaging in practice A as opposed to engaging in practice B, we are really saying that they choose between competing, alternative meanings to be assigned to their doings. These rival meanings by and large are not their creation – though in exceptional cases they might be – but are different cultural objectifications, which acquire their sense either as alternative options within the same culture, or they are options embedded in two different cultures, which come then to clash with one another in that specific action context. Interestingly, in order for these fragments of a culture to keep their original meaning intact, it is necessary – once we accept the thesis of the positional value of meaning – that the overall cultural unit to which they belong maintain a modicum of integrity.

Two examples could be useful for illustrating this point. I throw myself against the wall of the room in the attempt to pass through it, and I explain my gesture by mentioning the fact that in principle it is not impossible that, given the molecular structure of all matter, organic and inorganic, the empty and the solid parts of my body and the wall might favorably align after all. I continue by pointing out that, even though I am fully aware of the infinitesimal degree of probability of such an alignment, it is worth suffering the pains of banging against the wall in order to pursue the not impossible glory of being the first human being to pass through a wall. Mine remains, however, the totally idiosyncratic gesture of an almost insane person, understood by no one, and given that idiosyncratic character I cannot sensibly speak of a “choice” between exiting a room through the door or by trying to pass through the wall.

The second example is offered by the psychoanalyst Jonathan Lear, when he describes what the collapse of a world might mean, by way of reporting the transformation undergone by the culture of the Crow Native American tribe after the creation of the reservation. In their new life within the reservation Crows experience a devastating loss of their conceptual framework, a “collapse of their concepts” which is so described by Lear:

When a culture loses its integrity and collapses, no choice between that and another culture exists any longer. To protect freedom requires then that the roots of freedom be protected, namely, that the conditions be protected that enable the exercise of our freedom to choose between real alternatives. We can then state that to preserve the integrity of cultures qua societal cultures is important for a democrat insofar as that means to protect those reservoirs of meaning drawing on which individuals are able to conceptualize alternatives and thus to exercise their freedom of choice.

This thesis is thoroughly included in a comprehensive liberal position such as Ronald Dworkin’s, when he writes, in A Matter of Principle, “we inherited a cultural structure, and we have some duty, out of simple justice, to leave that structure at least as rich as we found it”.²³

The argument from freedom, however, is not yet complete. Up until now it has only been established that individual freedom of choice is protected if and only if the individual can choose between at least two cultural alternatives that are equally accessible: it has not been shown yet that among these cultural alternatives the individual’s own native culture should be included. In order to claim that freedom requires us to protect the individual’s ability to articulate the meanings of his or her chosen alternative within his or her own native culture an additional argument is needed.

In fact, as Jeremy Waldron has objected, individuals can move and convert from one religion to another, migrate from one culture to another. They can also inhabit a kaleidoscope of cultures with no one in a dominant position. Why should citizens demand that the meanings of their actions be construed according to the categories embedded in their own culture? No one can deny that some people live their life in two or more cultures at the same time. This very fact casts doubts on the sensibleness of the claim that “all people need their rootedness in the particular culture in which they and their ancestors were reared in the way that they need food, clothing and shelter. … Such immersion may be something that particular people like and enjoy. But they no longer can claim that it is something that they need”.²⁴

There is less than meets the eye in this objection, and in order to expose its weakness Kymlicka suggests to recast it in the vocabulary of distributive justice. No one can deny that in today’s world 1.2 billion people live below the poverty line, that is, on an income of less than $350 a year, and that they live under conditions of deprivation of adequate health care, housing and education, as attested by the UN Report on Human Development of 2001. Yet they somehow survive. At the same time, instead, within a number of religious cultures other people voluntarily choose a life of poverty. In neither case it is sensible to conclude that, since it is possible to live in poverty, then to be located above the poverty line is something that “particular people like and enjoy” but is not a human need. In other words, the existence of people who choose to live in poverty and of millions of others who adapt to poverty and survive does not, in and of itself, speak against the indispensability of a modicum of prosperity for a good life and does not then undermine the request that such standard be satisfied for every citizen. In an analogous way, concludes Kymlicka, “we should treat access to one’s culture as something that people can be expected to want, whatever their more particular conception of the good. This is a claim, not about the limits of human possibility, but about reasonable expectations”.²⁵

This understanding of the fundamental contribution of cultural affiliation to the identity of the individual, far from reflecting a kind of communitarian anti-liberalism is well documented by the internal transformation undergone by liberalism over the past three centuries. Adapting to a situation by simply residing in a place, not leaving, in 1690 was understood by John Locke as the compelling sign of a tacit consensus. In his words,

Three centuries thereafter, in 1993, in Political Liberalism, John Rawls thoroughly revises such understanding of consent that fails to grasp the crucial nexus of culture, identity and individual autonomy. For Rawls the formal provision of a right to expatriate can no longer by itself warrant that residing within the boundaries of a polity implies consent to its government. The reason why not, in Rawls’s words, is that

In conclusion, to truly protect freedom requires not only that the roots of freedom be protected, namely, that the existence be preserved of those organic units within which the alternative lines of conduct at the individual’s disposal acquire their meaning, but it requires also that each and every individual be granted the possibility of having his or her own culture among the diverse backgrounds available for making sense of action. Should a possible updating of the Rawlsian list of “primary goods” be envisaged, such enlargement ought to certainly include the good of “having the concrete choice of living one’s life in the culture of one’s upbringing” as a primary good in its own right and not simply as included in the larger set of the “social bases of self-respect”.²⁸

6.3 The continuity of multiculturalism and political liberalism

One often heard objection against multiculturalism should be addressed at this point. According to it multiculturalism would presuppose an understanding of cultures as impermeable, fixed and neatly demarcated – cultures as elements of a mosaic, indeed collective monads – and would overlook instead the extent to which cultures are internally differentiated, constantly in flux and in a state of interaction with one another from which contamination, reciprocal influence, cross-breeding, and alteration constantly result.²⁹

This objection leaves one wondering whether a third-person perspective has not been juxtaposed onto a first-person one. If a cognitive question is addressed – what is a culture and how does it work? – then certainly cultures appear to us as fluid, fuzzily delimited, prone to cross-breeding, and not in a fixed correspondence to an identifiable population that “possesses” it. Not always, however, is the appropriate question to ask in a given context a cognitive one. When our question is instead of a practical nature – what should I or we do, what is best for me or us to do in this situation? – these properties suddenly change. The cultures with which the actor is faced appear as entities that may well interact and influence one another over time, but do so within a time frame not at the actor’s disposal. The degree of specificity and detail with which we consider them is – just as the appropriate scale of a map – a function of the practical ends being pursued. Catholicism and Protestantism, Shi’a and Sunni Islam may provide the appropriate level of differentiation of my unit of analysis in one context, but, if the given deliberative context so requires, the relevant cultural units may be constituted by more fine-grained alternatives, for example, Franciscans versus Dominicans, Presbyterians versus Anglicans, or, at the other end of the spectrum, just Christians and Muslims.

The point can be further clarified through reference to a linguistic analogy. As a historical linguist, qua observer, from a third-person perspective I am certainly aware that English and Spanish are constantly evolving, and constantly borrow lexical resources from one another on account of the ongoing contacts among anglophone and hispanophone speakers. Words derived from one language enrich the other. As a speaker or in the first person, however, I cannot but speak either English or Spanish. For all my awareness of their porousness and fluidity over time, these languages stand over against me as organic entities within which I am immersed and which I cannot modify, except in a very indirect way, through the effects that my individual performance contributes or fails to contribute to stabilize. Thus their modification due to interaction with one another does occur, but its occurrence does not influence the context within which I must decide my line of conduct. Fluidity in this sense is not at the actor’s disposal. Italians could have had “euri” in the plural – like in Spanish, French and English there exists a distinct plural form, “euros” – had that linguistic trend become predominant. But once a tendency is prevailing and codified, it is no longer at the single speaker’s disposal, even though such use is not part of any essence but rather the result of a practice – a usage becomes, to put it with Hegel, a fragment of “objective Spirit”. Now Italian speakers have to use the unchanged form “euro” in the plural.

Consequently, we may not be forced to choose, after all, between multiculturalism and interculturalism or between two kinds of multiculturalism. Rather, we may find ourselves in the position of having to choose between the standpoint of the observer, who realizes that cultures influence one another, or that of the participant, who is always “thrown” into a context only partially of his or her own choosing, a context within which the choice of a line of conduct, be it individual or collective, always takes place against the background of configurations of meaning or cultures assumed to persist unchanged for the predictable time frame of the action. In relation to the cultures that impinge on his or her action context, the actor is in the same position as the social actor who realizes that, as Luhmann has aptly noted, it may well be the case that “everything could be otherwise” (and perhaps will indeed be otherwise in the future), but for the time being he “can change almost nothing”. Cultures are in constant flux for the observer, here and now they are given and fixed for the participant, they mutate but their mutation is not at the actors’ disposal.

A second objection, poignantly articulated by James Tully, points to the residues of ethnocentric bias that continue to haunt liberal constitutionalism and that the project of aligning multiculturalism and liberalism would unwittingly fall prey to. These residues amount to seven unexamined assumptions, typical of modern constitutionalism, that continue to operate even in the contemporary versions of liberal constitutionalism most open to accommodating cultural difference. The first presupposition – which cuts across liberal, nationalist and communitarian versions of constitutionalism – holds that a self-constituting demos is “culturally homogenous” in the sense that culture is either irrelevant (as in contract theories, assuming that free and equal individuals in a state of nature or in an original position, deliberate over the fair terms of their future cooperation) or capable of being transcended (typically so for geschichtsphilosophisch approaches that consider the self-constitution of a nation an expression of its attaining a modern form or reflective life), or uniform (as in communitarian views of the people as unified by a Volksgeist that includes a shared vision of the common good).³⁰ The second assumption is that modern constitutionalism is radically discontinuous with all forms of ancient or premodern or traditional constitutionalism. Whereas all nonmodern constitutionalism is a reflection of custom and tradition-bound normativity, the modern form is the product of reflection: even though it may incorporate elements of tradition and customary law, it does so after due critical reflection on the merit of these elements, which are then incorporated in positive law not because they are traditional, but because they pass the test of critical scrutiny.³¹ The third assumption is that the plurality of legal sources, often vying for preeminence, that pervaded ancient or premodern constitutionalism is superseded by a monocentric view of the sovereign people as the one and only recognized source of valid norms. In Hobbes and in Locke we hear a powerful plea for a unified body politic, capable of acting and being imputed action as one organic whole, and a condemnation of legal pluralism as inconsistent and unviable, when not plagued by the seed of division and discord.³² The fourth assumption is that the modern form of constitutionalism matches and is the only adequate one for a modern society – namely, for a society where the authority of custom and rank has been eroded by the growth of a civil society made of autonomous and propertied individuals.³³ The fifth assumption – the most parochial of all – equates the modern form of constitutionalism with a given set of specific institutions (e.g., representative government, the separation of powers, a bill of rights, a public sphere of a certain type, etc.), all the other forms counting then as “lower, stateless, irregular and ancient”.³⁴ The sixth assumption takes for granted that a modern constitutional state “possesses an individual identity as a ‘nation’, an imaginary community to which all nationals belong and in which they enjoy equal dignity as citizens” – an imaginary community based on equality internally (all its members are equal) and also externally (all nations have the same dignity).³⁵ Finally, the seventh assumption stipulates that a modern constitution, like a legal Big Bang, “comes into being as some founding moment and stands behind democratic politics” rather than growing together or alongside a democratic society or, in other words, is “the precondition of democracy, rather than a part of democracy” – an image “enhanced by the myths of the single lawgiver in the republican tradition, the original consensus of the community or nation in the nationalist tradition and the original or hypothetical contract, to which all citizens today would consent if they were rational, in the liberal tradition”.³⁶

In almost no other locus in the literature on multiculturalism can we see a more concise summary of all the unexamined presuppositions underlying the liberal-democratic ideal, the moment of closure exposed by the agonist critics as a blind spot hidden underneath the rhetoric of openness typical of liberal-democratic discourse. On closer inspection, however, it appears quite doubtful that this description can be applied to political liberalism, the political philosophy best situated in order to help democratic societies meet the challenges of the twenty-first century, including the one posed by hyperpluralism.

Although it must be kept into account that Rawls’s Political Liberalism had just appeared a year before Tully delivered the first Seeley lecture to be included in the Strange Multiplicity volume, one cannot fail to notice that political liberalism is not affected by at least six of these seven blind spots. First, there is simply no way to interpret Political Liberalism as embedding the assumption that culture is either irrelevant (after all, in Rawls’s 1993 work the original position has receded from a foundation of justice as fairness to being a “device of representation”, a freestanding anticipation of an overlapping consensus among rival comprehensive moral cultures endorsed by diverse groups of citizens),³⁷ or capable of being transcended (given the ubiquitous and inescapable operativity of the “burdens of judgment”, the fact of “reasonable pluralism” is here to stay and public reason cannot be expected to free us from it)³⁸ or uniform (even in A Theory of Justice the modern problem of justice is presented as bound up with a diversity of views and the modern society in which such a problem emerges is presented as radically discontinuous from a “community of saints” who share a common vision of the good).³⁹

In the case of the second presupposition, indeed in Political Liberalism we see reflected an image of the liberal-democratic polity, unified around a political conception of justice, as discontinuous from the unawareness or rejection of pluralism typical of ancient and perfectionist modern forms of political association. Political liberalism is presented by Rawls as a mature political philosophy that has finally learned a lesson that all the previous forms of constitutionalism, including the liberal perfectionist ones, had failed to learn: namely, how to defuse the destructiveness of political conflict fueled by rival worldviews.⁴⁰ In this respect, political liberalism fits the scheme that Tully is proposing, but it remains to be proven, on Tully’s part, what might be wrong with the project of envisaging a polity that institutionalizes reflection over tradition. The transition from traditional to reflective forms of legitimate authority amounts to a change of horizon that lies beyond the power of political actors both to produce at will and to revert once it is in place. One original aspect of political liberalism, that attenuates the hold of this second objection against it, is that even though perfectionist polities are presented as less than well ordered, in no way is this implicit judgment connected with a rejection of their legitimacy: in fact, in The Law of People, decent societies are accepted as fully legitimate participants in the “society of peoples” and are part and parcel of the validation of the scheme for international relations oriented to considerations of justice.

Concerning the third assumption, political liberalism offers an original combination of monocentric intuitions, when it comes to the institutional core of the polity (what Rawls calls the “political forum”, where public reason is to prevail over all forms of nonpublic reason), and at least a strong potential for accommodating legal-pluralist intuitions. Whereas Rawls might have been personally averse to any legal-pluralist suggestion, the framework of political liberalism, as we have seen in Chapter 4, can be extended to accommodate hyperpluralism by way of renouncing – without loss of consistency – the monocentric assumption that a polity in its entirety is integrated either via overlapping consensus or via modus vivendi. In Chapter 4 the multivariate democratic polity has been outlined primarily with reference to the diversity of subjective motivations that lead different cultural groups to endorse the constitutional essentials, but there is no reason in principle why the multivariate polity could not accommodate a plurality of legal practices – along the lines suggested by Shachar – in carefully delimited areas of law, provided that the constitutional essentials remain in place and operative.

The fourth assumption leaves political liberalism thoroughly unscathed: that “the modern form of constitutionalism matches and is the only adequate one for a modern society” is disproven by the very fact that political liberalism undoubtedly amounts to a political-philosophical reflection on late-modern society and yet is radically different from the hitherto known forms of modern constitutionalism – at least in the sense of acknowledging the relevance and ineliminability of cultural diversity and opening up the possibility of the multivariate democratic polity.

With reference to the fifth assumption, the core of political liberalism need not be equated with specific institutions, but can rather been understood as a constellation of concepts such as public reason, the political conception of justice, reasonable pluralism, the burdens of judgment, the duty of civility and the overlapping consensus. It seems hard to imagine that these interrelated concepts in some way track one specific set of institutions as the only legitimate ones – the burden of proof is certainly on the critic to show the necessity of that link. Similarly, no intrinsic link can be established between political liberalism and a form of state that emphasizes the imaginary community called the nation – the link that constitutes the sixth assumption attributed by Tully to all forms of modern constitutionalism. The Law of Peoples testifies to the fact that the fundamentals of political liberalism – again, public reason, reasonable pluralism, overlapping consensus over a political conception of justice – can be applied to the relations among nation-states and thus do not in any case depend on the imaginary of the nation.

Finally, political liberalism cannot be attributed the idea that the enacting of the constitution is like a political Big Bang that inaugurates a democratic polity, as in modern Hobbesian, Lockean or Rousseauian contractualism consensus on the compact inaugurated the polity, legitimate authority and binding political obligation. Evidence for this claim is the fact in Rawls’s scheme the overlapping consensus that defines a well-ordered liberal-democratic polity is a future-oriented standard, not a reality, let alone a founding moment. The nonatomistic, reconstructive, ultimately Hegelian thrust of Political Liberalism is manifest in Rawls’s account of a gradual and endogenously propelled transition from the fact of conflict to a modus vivendi first and subsequently to a “constitutional consensus”that only ideally – and at the end of struggles for the interpretation of the legal implications of rights and other constitutional essentials – results in an overlapping consensus proper.

To sum up, political liberalism, relative to all liberalisms of the past, is totally immune from at least five of these seven assumptions underlying all liberal traditions insensitive to cultural diversity, and concerning the condemnation of legal pluralism (presupposition 3), it could be argued that although this might have been John Rawls’s personal inclination, nothing in his theory makes it inconsistent to expand it in the direction of including elements of legal pluralism – and the idea of the “multivariate democratic polity” outlined in Chapter 4 introduces a theoretical premise (namely, that the mode of integration of the polity can combine aspects of overlapping consensus and aspect of modus vivendi) that opens up the possibility of a more legal-pluralistic understanding of political liberalism.

Thus only relative to one presupposition (i.e., presupposition 2) – namely, the self-proclaimed discontinuity of “modern constitutionalism” with all forms of ancient, premodern or traditional constitutionalism – Tully’s criticism hits the target. One further consideration, however, is in order. It seems to me that what is at stake in the opposition between accepting normativity in a reflective way, because it has passed the test of critical scrutiny, and accepting it unreflectively, because it is customary and part of a tradition with which we identify, is a much deeper opposition than the one between modern and premodern types of constitutionalism. By rejecting the sensibleness of this opposition, we reject also the Weberian distinction of traditional authority and legal-rational authority. Although it could be argued that, as a matter of fact, elements of traditionalism can and may well survive in protected niches of a legal-rational order, transforming this undeniable fact into a blurring of the ideal-typical distinctiveness of the two modes of legitimacy seems to introduce a dedifferentiation of our political-philosophical vocabulary whose advantageousness remains to be seen.

In closing, a crucial but so far underexamined aspect of the debate about multicultural policies must be taken on. If we have discarded the chimera of the “view from nowhere”, then we can no longer understand normativity, including the justification of multiculturalism, as the application of principles on the part of practical reason. Rather, we should adopt a way of grasping the cogency of normativity that does not rely on the notion of a complete translatability of cultures into another or on the notion of a neutral philosophical metalanguage. This inevitably affects also our view of justice, in the sense that judgments about what justice requires are then best conceived as judgments concerning the impact that provisions, proposals, and institutions under assessment exert on the prospect for the fulfillment of the identity of the involved groups and collectivities. This notion of justice – which pivots around the “normativity of identity” and more generally on the authenticity of an identity – orients us toward protecting the integrity of cultures and at the same time, when conflicts arise, orients us to pursue the most complete realization of the super-ordinate identity formed at the area of overlap between the cultural identities in tension.⁴¹ An important indicator of the salience of this authenticity and judgment-based view of justice is provided by the form that debates on multicultural policies usually take on: How important is it in Sikh culture to wear a turban? How important is instead, in the same culture, the small dagger that adolescents carry at their belt? How unrenounceable for the Hindu religious conscience is the custom of practicing sati? How crucial is the observance of a given religious holiday for a certain religious tradition? How fundamental for one’s sense of identity is the opportunity to use one’s own native tongue at the workplace? In most multicultural contentions we constantly see at work this relation of our reflective judgments concerning what justice requires to a judgment on the authenticity of an identity and its chances for flourishing.

From this point of view it can then be concluded that not only multiculturalism is not inconsistent with the fundamentals of a liberal-democratic rule of law conceived along the lines of political liberalism, but also that multiculturalism, understood as a discourse on the acceptability of differentiating some of the rights and duties of the citizens on the basis of their cultural affiliation, raises for political liberalism the challenge of integrating a judgment-based appraisal of the functional needs of identity within its approach to justice.