Equal Recognition: The Moral Foundations of Minority Rights

Equal Recognition: The Moral Foundations of Minority Rights, Alan Patten
(Princeton, N.J.: Princeton University Press, 2014), 344 pp., $45 cloth $29.95 paper.
doi:10.1017/S0892679416000174

Alan Patten’s Equal Recognition is the most significant systematic attempt at deriving a theory of minority rights from the basic tenets of liberalism since Will Kymlicka’s Multicultural Citizenship was published over twenty years ago. The following description can give only a taste of its richness and subtlety.

Any theorist wading into these philosophical waters must answer the question of why we need a new theory of liberal minority rights. Patten’s answer is that Kymlicka’s theory is not so much a theory of liberal multiculturalism as it is a theory of liberal nationalism. Kymlicka’s argument, to recall, is that citizens need contexts of choice in order to engage in the kind of autonomous decision-making to which liberals have traditionally given pride of place. For Kymlicka, only “societal cultures” can serve this purpose. (Societal cultures are defined by Kymlicka as possessing a full range of economic and social institutions, and as providing their members with options as to how to lead their lives across the full range of areas of human endeavor.) If we care about autonomous decision-making, then we need to care about societal cultures, since they make autonomous decision-making possible. In the case of minority societal cultures, this means providing members of a given group with group-differentiated rights through which they can protect themselves from the assimilative pressure exercised by majority societal cultures.

It is quite clear that Kymlicka has in mind modern nation-states as well as involuntarily incorporated minority nations, such as Quebec, Catalonia, and Scotland. Thus, his theory gives rise to an obligation on the part of multinational states to provide minority nations with constitutionally guaranteed powers through which they can exercise meaningful self-determination. What it does not do is provide a justification for any other kind of minority rights claim. Thus, Kymlicka’s theory is compatible with a federal system in which all federated units engage in internal nation-building aimed at integrating immigrant minorities.

Patten, however, aims to provide us with a liberal theory of minority rights, rather than a liberal theory of minority nationalism, and to overcome other philosophical difficulties that in his view have vitiated Kymlicka’s project. His argument is based on two main theoretical innovations.

The first has to do with the manner in which liberal theorists ought, in his view, to construe culture. Rather than conceive of it as a “context of choice,” with all of the attendant problems to which this conception gives rise, he argues that we should think of culture as a “social lineage.” For Patten, “A distinct culture is the relation that people share when, and to the extent that, they have shared with one another subjection to a set of formative conditions that are distinct from the formative conditions that are imposed on others” (p. 51; italics in the original).

The second innovation has to do with the much-maligned concept of liberal neutrality. In Patten’s view, we ought to think about neutrality neither as “neutrality of effect,” that is, of the outcomes associated with different state policies, nor as “neutrality of justification,” that is, of the ways in which policies are justified. Rather, we should think of neutrality as “neutrality of treatment,” that is, as a constraint on the way individuals and groups are treated. According to this view, individuals can be treated nonneutrally even by policies that are amenable to neutral justification. At the same time, fairness according to a conception of neutrality of treatment need not generate equal outcomes. Some individuals and groups can fare less well than others, as long as the manner in which they are dealt with by the state satisfies norms of neutrality of treatment.

How do these two conceptual innovations function within Patten’s overall argument, which is that it is sometimes a requirement of neutrality (and thus of liberal justice) that the state accommodate minority cultures? First, Patten distinguishes between substantive and procedural accounts of the requirement of justice toward cultures. For him, a substantive account derives a theory of minority rights from what a culture is, whereas a procedural account builds the case for minority rights by looking for cases in which the failure to grant minority rights would involve the state treating members of minority groups in a procedurally unjust (because nonneutral) way.

Patten argues that in order to meet this procedural requirement, liberal states will have to go beyond what he terms the “basic liberal package” that has tended to constitute the core of liberal theories of justice,such as that of John Rawls: that is, the provision of individual rights and a certain degree of material support for the least well-off. Patten argues that the basic liberal package is not sufficient to prevent majorities from using democratic processes in order to promote certain aspects of their cultures, and thus, from violating the norm of neutrality. For Patten, minority rights are required when their absence would give rise to (nonneutral) cultural majoritarianism.

Let me make three critical observations about Patten’s elegant theory and its incorporated conceptual innovations. The first is that there is a tension between Patten’s intention to base the argument in an entirely procedural account—one that does not ground such rights in an account of what liberals should take culture to be—and the formulation of just such a theory, namely, his theory of culture as social lineage. Granted, that theory is far less substantive than many others, including Kymlicka’s, but it is still a theory about what culture is. This poses a dilemma for Patten’s argument: either the argument for minority rights is truly procedural, in which case the account of culture as social lineage ends up being an idle wheel in the argumentative machinery of the book, or it does do substantive work, in which case the claim that the argument is entirely procedural is more difficult for him to establish.

Second, Patten’s account of culture is one that, were it to be a key cog in the theory, would incline it toward liberal nationalism just as surely as Kymlicka’s does. Everything turns on the way in which we understand the notion of “formative conditions.” In the modern world, it seems clear that the main formative conditions to which people are subjected are created by the state, in large measure through its control over educational institutions and curricula. Of course, states can abuse this power in an unjust way—say, by imposing educational requirements on incorporated minority nations as a way of eroding their distinctive cultures. But when they act in such a manner, they violate norms of liberal nationalism, rather than of liberal multiculturalism.

In order for Patten’s view to ground a more capacious conception of minority rights, it would have to claim that the state should abstain from intervening in the education of immigrant minorities or religious minorities entirely. It is hard to see Patten’s argument as welcoming this implication, especially given the fact that his theory generates only prima facie cultural rights, that is, rights that can be limited by weighty societal concerns. One might argue that there are good reasons, on grounds of equality, to forbid religious groups or immigrant minorities from exempting themselves entirely from a public education curriculum. There may thus be legitimate reasons of policy to allow the state to establish new “formative conditions” for immigrants. But if this is the case, it is hard to see how Patten’s theory moves us beyond Kymlicka’s.

Third, it is ultimately unclear that Patten truly relies on his account of culture as social lineage in order to ground his argument. Nor do I think the idea of neutrality can carry the argumentative weight he places on it. Patten’s argument is that, with respect to a certain category of goods, the state’s failure to accommodate minority groups constitutes a failure of neutrality. Those goods, which Patten terms “identity-related” (p. 156), are the ones that states have to take care not to distribute on the basis of purely majoritarian preferences. Identity-related goods in Patten’s view have two defining properties: first, the preferences that people have for them are connected to their “conceptions of the good”; second (and presumably by virtue of being so connected), they matter to people “in a special way,” such that it would constitute “an especially serious setback for the person were the preference to be unsatisfied” (p. 157).

This account of culture, connected to people’s conceptions of the good life, ends up smuggling in a substantive conception of culture through the back door. Indeed, one can well imagine an individual whose conception of the good life is far less tied to culture than is the case for the kinds of agents whose profile is being assumed in Patten’s argument. So while the view of culture that ties it as tightly as Patten’s view does to “identity” and to one’s “conception of the good life” is plausible, it is contestable, and thus falls foul of neutralist strictures.

There is perhaps no way that Patten’s neutrality-based account could have avoided this. Indeed, his view needs to ascribe pride of place to some preferences—those linked with a culturally defined conception of identity—in order to avoid the unwanted consequence of neutrality applying to all manner of preference. Moreover, this conception of culture is at best tangentially related, as far as I can see, to Patten’s “official” account of culture as social lineage. Again, that may have been inevitable: some things matter to people as a matter of recognition, not just because they are connected to the formative conditions that they share. Consequently, the social lineage account may be something of an idle wheel in Patten’s argument.

Patten thus faces a dilemma: either he grounds his conclusions in his conception of culture as lineage, in which case his argument ends up supporting conclusions that are similar to Kymlicka’s in privileging “societal cultures”; or he bases them on his alternative conception of culture as tied to identity and conceptions of the good, in which case he must abandon his neutralist pretentions. All that said, Patten has written a brilliant book on liberalism and culture, one that will fuel debates and discussions for years to come.

—DANIEL WEINSTOCK

The author is a James McGill Professor in the Faculty of Law and director of the McGill Institute for Health and Social Policy, McGill University.