Human Rights and Substantive Equality in the Adjudication of Ethnic Practices

Nordic Journal of Human Rights 34 (4) (2016)
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Abstract

With the development of human rights and anti-discrimination law, courts have increasingly been called upon to protect ethnicity related practices from general criminal and civil sanctions. These ‘claims of culture’ have so far been addressed with remarkable inconsistency, leading to popular fears of unlimited normative pluralism and targeted legislative measures. Compounding such controversies, philosophical approaches to multiculturalism have mostly been concerned with policy and offered vague or distorted portrayals of judicial challenges. This article seeks to fill the gap by exploring how the legal standard of substantive equality might structure the courts’ approach to a range of cases involving minority litigants. In particular, I will argue that ethnic practices can be usefully divided into four categories triggering distinct modes of legal reasoning: criminal offences, human rights violations, civil infractions, and symbolic identification. In the first case, cultural differences mainly bear on the analysis of subjective blameworthiness, whereas in the second, they bring out an ongoing shift in the public/private and negative/positive nature of human rights obligations. Civil infractions call for the application of anti-discrimination standards developed in the doctrine of indirect discrimination and reasonable accommodation. As for symbolic identification, it raises the issue of national identities and legal instruments to make them inclusive of the whole citizenry.

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