Papers on Finno-Ugric Peoples and other Minority Issues

State nationality policy assessed in the liberal discourse of human rights and minority rights

Interest of legal and state theorists towards ethnic and national phenomena is not accidental one, because the very forms of the state and its law depend on the way ethnicity and nationalism are accommodated within the state structures. Yet, there are few specialists in international law, which could speak on minority issues in law language and formulate ethno-national claims in legal terms. Paying attention to the lawyers' participation degree in discussing the problems of ethnicity and nationalism, Bill Bowring pointed out that “although increasing attention is paid by Western legal theorists to the work on citizenship …, there is almost no reference to nationalism theory.” 1

Stephen Tierney shows that this gap between law and ethnonational and ethnopolitical realities is even wider: “The preference for contextual analysis over an interdisciplinary search for the substance and validity of nationalist claims has left a significant gap between, on the one hand, the work of social scientists and philosophers who grapple with the empirical and normative manifestations of national identity, and, on the other hand, international lawyers who address the ‘right of all people to self-determination’ simply in terms of internal structures of the conventions and declarations in which the right appears…(this) would seem to demand a more sophisticated engagement by lawyers with the political and moral justifications which are inextricably linked in most nationalist claims to better legal recognition.” Further, Stephen Tierney advises the researchers “with an interest in developing the meaning of self-determination as a legal right should inform themselves first, of the work being done by social scientists in their attempt to locate the origin of national identity, and secondly, of the efforts of theorists to engage with the moral issues arising from the rights claims of ethnic or national group.” 2 The question of justice should be a central one in a research on this topic.

It seems the truth is born in the dialogue between lawyers and politicians. The difference between their discourses becomes apparent in the view of Kantian classical dilemma of ‘sein’ and ‘sollen’. A politician starts from the present situation, from reality towards visions. A lawyer brought up in the continental law system has the framework of law as a quasi-ethical system and trends to go towards the society how it must be in justice. The later approach is a Hegelian one, a way from idea of absolute towards reality. As history shows, e.g. Marxism as materialistic elaboration of Hegelian dialectics, Hegelian ideas entail the threat of monism in people's understanding of real life, thus, are in opposition to pluralism, which precludes the dialogue. I believe the right way should start from ethno-national claims through recognition of ethno-political interests towards legal recognition of ethno-cultural differences.

What have the philosophical conceptions brought into the debate in political sciences and the theory of state and law? Law reflects new achievements of social sciences (such as deconstruction discourse, which is rather common for social sciences nowadays) but not directly. That is, the attempts to formulate alternative conceptions of the nation have certain implications for relevant law and state debate. Namely, in the political-legal context the first temptation is to deconstruct the conception of the nation. Still nowadays the theorists are accustomed to take outputs of other social and political scientists automatically and without testing for legal purposes. Lawyers work with results, which have already been prepared by ethnologists as well as scholars of nationalism and ethnopolitics. For example, some theorists think that essentialist and situationalist theories can be applied while discussing the problems of state and nation-building. The attempt to fill this gap from the standpoint of situationalism was made by Timo Makkonen in his recent work.3

The most problematic here is the question of the origin of identities, as well as the role of the state in constructing them. Exploring the literature on the issue one comes to the conclusion that scientists usually try to take neutral position in dealing with legal aspects of ethnicity. Historically theoreticians in their argument used to assume the homogeneity of the population of the state. But recently inadequacy of this approach has been realised. Ethnicity and nationality are often taken as a base for inclusion or exclusion individuals and ethnic groups and such policies create injustices. First of all, it can be seen in the treatment of citizenship. Appropriate political and legal forms should be found to combat injustices based on one's ethnic origin. In my opinion, the approach to the matter from the position of ethno-national movements is not less justified as it allows seeing the problem with ethnic claims from inside.

I argue that we shouldn't mix the theories of ethnology with those of ethnopolitics and other political sciences. The legal discourse is influenced by theories and categories of ethnology, ethnopolitics, nationalism and other social sciences. But it is important to understand that we cannot arbitrarily transfer outcomes of philosophy and ethnology, which are presented by essentialist and situationalist approaches, from ‘the world of ideas’, into the current discourse of ethnopolitics and law. The concept of state is also a construction. It is no more justified than the concept of nation. If we deconstruct the category ‘nation’ why could we not deconstruct the category ‘state’? Beyond the frame of philosopical discourse the idea of state usually takes the form of material substance. People start to believe that "state" is something natural and obvious. Artificial constructs of civic nationalism are no more justified than those of ethnic nationalism; they bear the same core of essentialism. In the field of ethnicity we should work with alternatives other than dualism of monistic ‘essentialism’ and ‘situationalism’ or ‘ethnic nationalism’ and ‘civic nationalism’. It must be realised that the state is not the place were the identities should be born, even if it pretends.4

In political-legal space few proponents of liberalism such as Charles Taylor, Yael Tamir, Jozef Raz, and more recently, Will Kymlicka and David Miller, addressed the issue of nationalist impact on the contemporary world developments from liberal prospective. In this paper I investigate the liberal response at the level of political-legal debate to the rise of ethno-nationalism. My suggestion is that the liberals fill the gap I sketched above between ethno-national claims and legal pretensions in complementary approach moving from ethnicity to politics and law. I begin with analysis of political philosophy of Will Kymlicka. Further, I undertake the survey in David Miller's philosophy. Finally, I compare the proposals of David Miller and Will Kymlicka for political and legal accommodation of ethnocultural differences and outline some implication of their reasoning for the legal discourse on human rights.

Minority nations within the multi-nation state in political philosophy of David Miller

David Miller proclaims plainly that his task is to adopt a practical attitude adequate towards nationalism. This is similar to what I have discussed on practical application of modernist approach in Rogers Brubaker’s position. Like Kymlicka, but unlike Brubaker, Miller thinks nationalism is not totally modern and not something what happens. Modern is the idea of acting collectively, which enables people to generate nationalism making sense of social surroundings. Thus, he recognises that people’s own beliefs matter for nationality, but notwithstanding hesitates about validity of subjectivity as method. He is concerned rather with objective consideration of social constructions available to critical analysis in accordance with implications of Benedict Anderson and Eric Hobsbawm.5 Miller’s work is exceptional for his excurse into ethical problems of nationality. He argues national allegiances are suitable only in the context of ethnic particularism, which values membership and attachments. 6 Probably, ethnic particularism could be equated with cultural relativism, although Miller is not explicit on the issue.

Following John Stuart Mill, David Miller favours the term ‘nationality’ to ‘nationalism’, because in his view the later term bears negative connotation, not being enough sanitised even with involvement of classifications of different kinds of nationalism. In fact, this is already positioning, because the term ‘nationality’ stays next to ‘citizenship’. In consistency with this theoretical framework with reservation he could be named a proponent of nation-building project, including such its components as public debate, vision of the future and civil education. Reservation concerns his restriction of applicability of such project to ethnic but not national groups. Simultaneously, Miller denies himself being a proponent of civic nationalism, in particular he criticizes ‘constitutional patriotism’ of Habermas, arguing that such concepts are misleading, because they provide too thin reading of citizenship as the political umbrella of society. Cultural membership matters for citizenship in his opinion, and civic ties are too thin to cover it.7

Being a pluralist Miller favours unsurprisingly liberal multiculturalism of Josef Raz and criticizes what he calls radical multiculturalism of I. M. Young, because in Miller’s view multicultural politics of difference alienates. Basing on American example he claims that multiculturalism and nationality might be reconciled thinning national identities, but still preserving cultural component, that is, not too thin, not just to the political content of Habermas. Instead he argues there are many ways of being national. He quotes Michael Walzer that national identity is not replacement but addition to ethnic consciousness. 8 Thus, Miller believes that despite the cosmopolitan and multicultural challenges, national identities continue to matter, because they provide appropriate form of solidarity. No one is simply a nationalist, that is why liberal theory like this of Miller is needed.9

In his way of thinking it is realised that even if the nation is distinct form the state, they, nevertheless, correspond to each other. One implication of this is that rights and obligation stemming from nationality are powerful, but amorphous, whereas citizenship provides them with determinacy. Nonetheless, Miller believes that multi-ethnic nation is also viable, if ethnic groups feel secure and comfortable within the wider state, thus, are sub-national in his vocabulary. He criticizes Gellner for his belief that a nation must be ethnically homogeneous. Miller argues it is an error to believe that every cultural group wants its own state.10

Of course, if group’s existence is threatened, it would be logical for Miller to expect their desire to acquire own national identity and, thus, become de facto a national minority. He assumes that an ideal solution would be if national and political units were congruent, that is, for him national minority could become the bearer of the right to national self-determination.

National self-determination is the way to achieve Gellner’s ideal of congruence between political and national units, thus, bearing destabilising force. But rather then accounting nationalism as backward-looking and reactionary, David Miller points to historical association between national self-determination and democracy. He argues only democratic state can ensure self-determination to be genuinely national, that is, not of a class or an elite. I think this coordination function of national ideology is equally valid also towards ethnic groups, which often constitute a separate social strata. But Miller admits it would be too strong to say that self-determination requires democracy. Often the only democratic solution is partial self-determination, which contradicts Gellner’s definition. Indeed, it follows from what he says that nationalism could be democratic or exclusionary. It depends on whether democratic procedures are kept in the process of national self-determination.11

In practice the formal political status of ethnic and national minorities is often similar, and Miller does not provide criteria what features exactly make them distinct from each other. He opposes secession for ethnic groups and argues that in many cases only partial self-determination of national groups is realistic due to situations when the territory is too small to function as an independent state, or when population are so mixed that damage of separation will exceed its merits. It matters for secession also if national groups compose 'rival nationalities' or 'nested nationalities'. In Kymlickan classification both are referred as national minorities. Miller's classification is more sophisticated and, it seems, justified so. In the case of together-being described as 'rival nationalities' he recognises national self-determination as a valid method of solution. Breuilly believes the last multicultural state was the USSR; for Brubaker Europe is entering not a post-national but post-multinational era. Miller agrees partly only with classic modernist scepticism to pluralism by Gellner, Breuilly as well as pragmatism by Brubaker. Unlike Gellner he does not see every national group with distinct national identity to be potential nation and admits that multi-nation state is another solution in the situation of 'nested nationalities'. 12

The core idea of the category 'nested nationality' proceeds from understanding that national identity often being ambivalent can exist at two levels. This category is addressed to phenomena laying in-between those signified as ethnic groups and rival national groups. Ethnicity is not political identity and does not bear territorial claims in itself. Miller applies for justification of the category the case of British, English and Scottish identities. But his ideas are applicable for assessment of the cases with every minority nation. Miller enumerates such factors contributing to nested nations as overlapping cultures, mutual economic advantage, interwoven history of collaboration and common memory. In my view, common history would be the first factor to list, in the sense, that it precedes and enables overlap of cultures and economic benefits to take place. For nations to have common history means that no alternative reading of historical together-being is allowed except the one written in collaboration. Further, Miller argues that enthusiasm for nations staying in one state is greater among small nations. The label matters because of power of the idea of national self-determination. For members of majority too often it is hard to distinguish different levels of identity. Thus, not every citizen is a bearer of nested identities. What identity do the representatives of majority have then? Miller doubts if such national identity exists.13

What is in Miller's opinion the best way to accommodate 'nested nationalities' in the state? He believes majority voting cannot decide the state structure. There should be constitutional settlement for sub-nations. The proper response is to create political structure to recognise difference of two or more communities. Minority needs a clear and distinct national identity. Such distinction has for minority both symbolic and material importance. It would be misleading after all to consider such a state as multinational. At the same time, he is right to point out that members of dominant nation would rather not think of themselves as separate nation apart and below state-nation. Nevertheless, his prescription is that majority nation should recognise smaller nations as separate ones. In my opinion, here lays breach in argumentation. I think Miller's own critique of identity politics is equally valid here towards majority. Constitutional accommodation of minority nations and fostering of minority identities would automatically lead to self-identification of majority as separate nation in the state.

Minority nations and the theory of minority rights in political philosophy of Will Kymlicka

Starting with his first significant book on liberalism and culture, Will Kymlicka articulates his intention to generate a liberal response to the challenge of ethnocultural diversity. His vocabulary in the book on multicultural citizenship suggests that constructing the theory, he started with ethnicity, that is, he did not go in depth exploring the philosophical and sociological roots of ethnonational phenomena, but took rather a practical approach with intention to accommodate ethnocultural differences within the existing political structures of the liberal state. In his recent book he elaborated on his theory at the level of philosophical and ethnological debate. 14

Unlike some other political science scholars in the field supporting the necessity of practical stand in containing nationalism like Brubaker, Kymlicka sees these ethnic differences as real source of social injustice, thus, does not share the view on ethnic identity as situational. In fact, he posits himself against situationalism when proposing the categories and their definition as response to politics of situationalism. This later term must be interpreted probably in such way that the state voluntarily can abstain from definition of its nationality policies to encourage situational change of identities. It is minorities who want to have the rules of game defined. At the same time, Kymlicka does not fall into essentialism, which is the other extreme approach to nationalism. He emphasises, what would be logical to expect from a politician is instrumental value of cultures in justification of claims for political power. Yet, he rejects also modernist explanation and argues the explanation to minority issues in terms of the clash of civilisations is made for the sake of theoretical contrast, that is, exaggerated. 15

Central for liberal conception freedom of choice depends on culture. Societal culture provides meaningful ways of life, context for choice. Nation’s societal culture is national culture. The difference between ethnic groups and national groups is that the later have societal culture. Could be without? Interchange is possible, but still remain to be different cultures. Self-government of small nations is needed to control the rate of change. Culture must be own, too strong to give up, Rawls believes. Despite cultural unification, people do value their cultural membership, because it provides meaningful options.

Such staging led him to distinction between two basic categories in his theory: 'national minorities' and 'immigrants'. Distinction is grounded in basic difference of the place and strategies of groups in society. Immigrants aim at "similarity" whereas national minorities at "difference"16. Answering to criticism expressed by some scholars towards this dilemma, he alleges the actual practice and argues exactly these cases to be most typical ways of successfully containing the ethnonational challenge. The fact that the difficult cases "in-between" remain resolved does not permit generalisations on invalidity of the categories and inadmissibility of national claims as such. These cases are the result of injustice and do not harm the logic of dilemma. Still, racism can be inclusive or exclusive 17.

His opening point is comprehension of inadmissibility of the situation when scholars construct their state theories as if the state were culturally homogeneous and, thus, are silent on minority issues. In reality, he witnesses, states rarely are homogeneous.18 In his view, it is false to think that "civic nations" are ethnically neutral. Basing on this premise, he perceives the need to supplement traditional human rights doctrines with liberal theory of minority rights. Minority rights in this context are not deviation from neutrality but response to nation-building. According to Kymlicka to struggle for minority rights means, first, to accept the nation-building concept and, second to amend and modify it. Ethnocultural groups deserve liberalisation and modernisation but still need minority rights. Their minority nationalism is directed to liberal democratic values. Limits to nationalism are applicable both to majority and minority nationalisms. Theory of permissible forms of nation-building is needed. External protections are legitimate from liberal point of view. Internal restrictions are prohibited. 19 Thus, the outcome is that even if it is hard to accomplish in the conditions of dominant culture, national minorities are legitimate in pursuing their own nation-building alternative to state nation-building. 20

The state could both multinational and polyethnic, though usually it views itself as one or other. Minorities are afraid that policies would reduce their claims of nationhood to the level of immigrant ethnicity. That was often the reaction to the laws advancing national-cultural autonomy. Kymlicka explores three arguments of justice: equality, historical agreements and cultural diversity and emphasises that they should be involved in complex. After all, claims of justice made by ethnic groups are of the same kind made by social movements. That means a part of a larger struggle.21

It could be said that democratic multinational federation succeeded even if it constantly faces the challenge what is the source of its unity and, additionally, is not always fair to its nations. One problem is that federal subunits can be manipulated to actually reduce self-government of minority nations. It is not a wonder that nationality-based units want more power than territory-based units, because nations vision of federation is federation of peoples. They want their status to be symbolically recognised. But this vision is difficult to negotiate with majority nation and implement in asymmetrical federalism, because for majority federation is first of all federation of territorial units. Kymlicka believes such majority expectation to be a mistake based of false equation of equality of citizens and equality of units. The first is a principle of liberalism but not the second. Having in mind this difficulty, the other problem appears that minority nations experience better treatment from the federal government than from subunit government if they are in minority in the subunit either. In my view, regional political elites are not interested usually to increase power of subunit but see it just as a part within the larger context of the state as a whole. And it is "glory" of the state they are concerned, not of its subunit. To resolve the problems Kymlicka illustrates the way they were addressed in the US and Canada in form of reserved lands out side the federal system.22

In sum, Kymlicka is sophisticated in showing what is needed to accomplish minority nation-building project.23 An ethno-national movement should present its pursue for recognition in the political-legal field as a part in the general struggle for democratisation. First, it should press the state for the rules of the ethnopolitical games, for defined nationality policies. Second, it should lobby for asymmetrical federation, where national minorities will be recognised as constitutive nations of nationality-based federal units, having symbolic but also material dividends from such status. Third, in the case when nationality-based federal units are not asymmetrical, that is, not effective for minority nation-building, the movement should concentrate on the struggle for self-government rights, extending the system of federation, preferring rather land reserves system and advancing land rights' claims in capacity of indigenous peoples.

Some implications for general human rights concept

The theories of liberal nationalism advanced by Will Kymlicka and David Miller provide a passable bridge between ethno-nationalism and law. Stepping from similar liberal premises, they both took a practical approach of political researchers and did not plan to produce a new theory of nationalism, nor a legal theory. Nevertheless, their proposals are important for investigators of both ethnopolitics and law, because of their far-reaching implications.

Kymlicka is a political philosopher, not a lawyer. His intention is to produce a theory on minority rights, but after all it is a political theory of rights. He was able to put the minority issues in language of rights, because he assessed the existing doctrine from the perspective of finding a political solution to ethical problems of social justice. It is indeed possible to look at the matter from the point of justice. But justice is not a single driving force in politics and even not the most influential. Politicians often are led by considerations of stability instead those of justice. In fact, a solution in the political sphere has not been found yet. That is why ethno-national claims are not ready for revised legal comprehension either. It seems it is not possible to reach an adequate normative evaluation of the problem in the legal discourse without negotiated political forms of adjustment beyond the state.

The concept of the nation-state is challenged. What is the corner brick of the fundament of the modern international political order? Is this the state? Does the concept of national sovereignty based on the ideology of civil nation remain to be more justified than other concepts? “The notion of the state and sovereign state is becoming increasingly difficult to employ as description of reality” 24.The bloody history of last century has shown that the state cannot be build on the idea of supremacy of one class over the others or of one ethnically defined nation over the others. But could it be build up on the notion of civil nation that is on citizenship, which is given by the state its population? Is the idea of patriotism cultivated among state’s own citizens not the same idea of supremacy of white race over yellow and black ones? These are the question for a discussion on the future of the state itself, which two scholars do not undertake. They work rather within the existing concept of the liberal state.

Group-differentiated rights are considered to be in contradiction to citizenship and to challenge social unity in the liberal state. But citizenship itself is group-differentiated as far as it concerns foreigners. The state promotes certain cultural identity, the government supports dominant culture. In fact, representation rights and polyethnic rights of minorities serve the function of integration into society. Indeed, only self-government rights could theoretically challenge citizenship. However, nation-building policies imposing common citizenship on minorities lead to violent conflicts, whereas guaranteeing self-government rights reduces the likelihood of such conflicts. Kymlicka agrees with Anthony D. Smith and Walker Connor that governments have no other choice than to accommodate minorities through recognition of minority rights in addition to human rights.

Miller has little to say on law and does not pretend to formulate legal conceptions, nonetheless cannot spare the language of rights. One important Miller’s consideration is that “the principle of nationality is resistant to special rights for groups, over and above what equal treatment requires, because of the fear that this will ossify group differences and destroy the sense of common nationality on which democratic politics depends”.25 Further, in the second book, he is of different opinion on this question and considers as desirable political recognition, which fixes and consolidates minorities. People are not to be trapped in their own past. Miller reaches a similar to Kymlicka conclusion that nationalists are true to their core belief, only that nationality principle must be applied to all levels.26

In Kymlickan appraisal, individual human rights protect group life, although not perfectly, remaining silent on some issues, including minority issues. Non-discrimination is helpful to protect minorities from most the cruel attempts of assimilation and other abuses like genocide. But existing human rights are still insufficient to prevent other forms of ethnocultural injustice, because they do not preclude less extreme forms of nation-building. The field of human rights, minority rights and citizen's rights remains to be controversial, for example, in what concerns the right to free mobility etc. The state can infringe minority rights under the slogan of human rights assertion in such directions of its nationality policies as internal migration policies, drawing the boundaries and sharing power with internal political units, pursuing official language policy. Thus, Kymlicka holds the view that human rights and minority rights are equally important components of the human rights doctrine. The list of human rights is incomplete and should be amended to fill this gap and avoid contradictions. That means minority rights are not exception from but logical extension of human rights. That is to say, liberal minority-majority approach to ethno-national challenge is a part of the general liberal discourse and, thus, is not exceptional to the liberal human rights doctrine. 27

---

1 Makkonen, Timo. Identity, Difference and Otherness. The Concepts of "People," "Indigenous people" and "Minority" in International Law, Erik Castrén Institute Research Reports 7/2000, Forum Iuris, Helsinki 2000, p. 33
2 Laitin, David. Political science. In: Encyclopaedia of nationalism. Fundamental themes. San-Diego etc. Acad. press, 2001. Vol. 1, p. 575
3 Miller, David. On nationality, Clarendon Press, Oxford, 1995, pp. 4-7
4 Ibid., pp. 49-58
5 Ibid., pp. 163, 178, 182, 189; Citizenship and national identity, Cambridge Polity Press, 2000, p. 131; He pays specific attention to question of citizenship and nationality in this second book especially in chapter 5.
6 Miller, David. Citizenship and national identity, Cambridge Polity Press, 2000, pp. 130-141
7 Ibid., pp. 155-195, especially pages 162, 174, 184, 187;
8 Citizenship and national identity, Cambridge Polity Press, 2000, p. 31. Similar point on complementarity of nationalism made Anthony D. Smith
9 Miller, David. On nationality, Clarendon Press, Oxford, 1995, pp. 20-21, 68-70
10 Ibid., pp. 89-90;
11Citizenship and national identity, Cambridge Polity Press, 2000, p. 26
12 Miller, David. Citizenship and national identity, Cambridge Polity Press, 2000, pp. 113-117
13 Ibid., pp. 127-137
14 For evolution of his view compare, for instance: Kymlicka, Will. Liberalism, community, and culture, Oxford Clarendon Press, 1989, Multicultural citizenship: a liberal theory of minority rights, Oxford Clarendon Press, 1995, and Politics in the Vernacular - Nationalism, Multiculturalism, and Citizenship, Queen’s National Scholar, Department of Philosophy, Queen’s University, 2001
15 Kymlicka, Will. Politics in the Vernacular - Nationalism, Multiculturalism, and Citizenship, Queen’s National Scholar, Department of Philosophy, Queen’s University, 2001, pp. 50-62
16 Kymlicka, Will. Multicultural citizenship: a liberal theory of minority rights, Oxford Clarendon Press 1995, pp. 59-60
17 Ibid., pp. 64-65
18 Ibid., pp. 1-6
19 Kymlicka, Will. Multicultural citizenship: a liberal theory of minority rights, Oxford Clarendon Press 1995, pp. 34-35
20 Kymlicka, Will. Politics in the Vernacular - Nationalism, Multiculturalism, and Citizenship, Queen’s National Scholar, Department of Philosophy, Queen’s University, 2001, pp. 1-4, 20-38
21 Kymlicka, Will. Multicultural citizenship: a liberal theory of minority rights, Oxford Clarendon Press 1995, pp. 13-19, 239
22 Kymlicka, Will. Politics in the Vernacular - Nationalism, Multiculturalism, and Citizenship, Queen’s National Scholar, Department of Philosophy, Queen’s University, 2001, pp. 90-110
23 Ibid., pp. 158-160
24 Breuilly, John. Nationalism and the State / Manchester University Press 1982, second edition 1992, p. 395
25 Miller, David. On nationality, Clarendon Press, Oxford, 1995, pp. 146-154
26 Miller, David. Citizenship and national identity, Cambridge Polity Press, 2000, pp. 35, 70, 138-140
27 Kymlicka, Will. Politics in the Vernacular - Nationalism, Multiculturalism, and Citizenship, Queen’s National Scholar, Department of Philosophy, Queen’s University, 2001, pp. 69-89

Date: May, 2004