The Nation Strikes Back


Review of The Cultural Defense of Nations: A Liberal Theory of Majority Rights, by Liav Orgad

Oxford: Oxford University Press, 2016

“What then is the American, this new man?...He is an American, who, leaving behind him all his ancient prejudices and manners, receives new ones from the new mode of life he has embraced, the new government he obeys and the new rank he holds.” In this eighteenth century classic Letters From an American Farmer, J. Hector St. John de Crevecoeur was introducing life in the British colonies in North America to a fictional English gentleman, but he could well be talking about a contemporary immigrant to the United States in the twenty-first century. But what if the immigrant insists on keeping his old manners or ways of life even as he swears allegiance to a new government? 

Majorities are a recurring specter in liberal political theory. The fear of its tyranny underlies the Madisonian political innovations of divided powers, federalism, and the separation of church and state. Madison assumes that notwithstanding this approach, the majority can take care of itself, while the structure of government ensures at the same time that minority rights are not disregarded. In this timely and erudite intervention, Israeli legal scholar Liav Orgad flips that idea on its head and argues that majority groups under certain conditions also need protection. Their identity, history, government, and way of life need defending. And this need is most pressing in the immigration context when their numerical superiority is rendered less salient compared to other contexts involving democratic decision-making. Provocatively, Orgad justifies this on the same liberal grounds of right to self-determination (autonomy) and right to culture (identity) as minority rights.

Why play defense now? The first three chapters of Cultural Defense survey the landscape of changing migration patterns and chronicles the corresponding demographic as well as cultural anxieties particularly besetting countries in Western Europe, the United States and Israel. The underlying tone is reminiscent of what investigative reporter Ben Judah writes of his mission that produced the recent nonfiction This is London: “I was born in London but I no longer recognize this city. I don’t know if I love the new London or if it frightens me.” Some, like Judah, find reasons to empathize with why many have looked to the West to begin a new life. But many have followed that same sentiment with calls for their governments to close off borders and stem the tide of immigration due to fears that their societies would undergo a fundamental cultural transformation. For example, British Prime Minister David Cameron recently announced a new scheme which requires newcomers to the United Kingdom to take and pass an English language test, a move that many acknowledged to be directed against Muslim women from North Africa and the Middle East arriving on spousal visas. And in the wake of the Brussels attacks, Belgium will now require non-EU migrants to sign integration contracts declaring their acceptance of local values, which includes a pledge to prevent and report attempts to commit acts of terrorism.

The latter half of the book covers different forms of cultural defense and distinguishes between legitimate and illegitimate defenses judged against the standards of liberalism. For instance, it excoriates, and rightfully so, loyalty oaths, on the one hand, as an illegitimate and illiberal form of cultural defense. Attachment or language requirements on the other hand are legitimate and in many respects, useful. The final chapter prescribes a new immigration framework that takes into account the needs and rights of particular kinds of majority groups, namely: (1) diminishing majorities; (2) regional-minority majorities; (3) victimized majorities; and (4) minoritized majorities.

While Cultural Defense is focused on immigration law and policy, it nonetheless tackles questions that are right at the heart of constitutional law and theory. As U.S. immigration historian Mae Ngai has written, immigration policy is constitutive of a people’s understanding of national membership and citizenship. It is where lines of exclusion and inclusion are drawn in order to articulate a desired composition of the nation, whether imagined or realized. Orgad states it is a mirror of a nation’s constitutional identity. Consequently, he offers a two-tier proposal for admission and eventual membership. A potential immigrant has to accept basic liberal democratic principles upon admission, and more importantly, he or she has to accept certain constitutional essentials particular to that society as a condition of citizenship. Determining whether those constitutional essentials are just requires an assessment of the totality of the state’s circumstances.

The term ‘constitution’ here is used in the small-c sense, referring to the fundamental makeup and values of a given society. It embraces a nation-state’s uniqueness as illustrated in its constitutional history, development and traditions. Think for example, of the crime of Holocaust denial in Germany, or the principle of multiculturalism in Canada. In these cases, it would be just to require would-be immigrants to accept them. Thus, under Orgad’s account, the would-be immigrant to, say, Norway, only needs to agree to the basic rules of political liberalism, e.g. gender equality, in order to gain admission. To gain citizenship, however, she or he needs to accept the constitutional essentials of that country -- in Norway, the constitutional monarchy or the role of the Church of Norway as the official state religion. The animating idea behind this particularistic prong is that it acts as a safeguard against a presumably unwelcome metamorphosis of that society brought about by migration.

With the current unprecedented levels of migration challenging conventional notions of sovereignty and pluralism, Orgad puts his thumb on one of the most pressing issues of our time. The idea and consequent theoretical justification of majority rights is long overdue but the concrete proposal put forth by Cultural Defense however seems less revolutionary than it appears. The argument that majority rights should be taken into account in the particular context of immigration – whether at the admission or naturalization stage – is a fair one, and one that requires justification. And to the extent that current immigration measures do not really get at the core of what being a British, French, German, or American is, the argument holds water. (Orgad catalogs an amusing array of citizenship test questions that are either irrelevant or unhelpful in different jurisdictions, for example, the British Life in the UK test includes the question ‘Where does Father Christmas come from?’). But this is also a relatively easy argument to make. Immigration after all is a sovereign prerogative that is plenary in scope. Even an extreme example, such as U.S. presidential candidate Donald Trump’s proposed immigration ban on Muslims, could arguably be legally justified under existing constitutional law. Of course, such a hypothetical scenario would go against Orgad’s basic requirement, namely that these required constitutional essentials be just, but it only serves to illustrate that even unjust proposals would pass muster under our prevailing conceptions of sovereignty, and that of immigration law as an aspect of majoritarian decision-making.

Moreover, admitting aliens who have professed adherence to liberal democratic principles and legally accepts those just, constitutional essentials of that society will not really obviate majority anxieties about cultural preservation. As the book already notes, integration difficulties are more often acute with second and third-generation migrants, not the original migrants undergoing these citizenship tests and whose allegiance is tested and secured by these measures of cultural defense. Consider Mohammed Bouyeri, who was born and raised in Amsterdam and later convicted for the murder of the Dutch filmmaker Theo Van Gogh. Following Orgad’s prescription, it is perfectly valid for France to ask and thereafter require would-be French citizens to accept the legality of same-sex marriage or gender equality as constituent principles of French society. But that will not avoid controversies such as those involving the bans on religious headgear or face coverings. Integration is an ongoing process and requires a multifaceted approach from the host society, rather than something that can be promised at the outset by the immigrant.

A minor quibble about the book is that the inclusion of Israel as a case study does not seem to fit with the examples of the United States and countries in Western Europe. Israel is not established as a country open to immigrants generally, but rather as one meant only for Jewish immigration. The issues of majority-minority relations within Israel, between its Jewish and Arab populations, and between Israel and its occupied territories are thus sui generis.

Cultural Defense nevertheless casts an important light on the anxieties underlying the gamut of existing cultural defense measures - integration contracts, attachment requirements and loyalty oaths - separate from the issue of their efficacy. Whether or not they work is less important than why they exist in the first place. In this vein, the most significant contribution of the book is in the introduction and unpacking of majorities as a concept and category of analysis in law and constitutional theory. In practice, what the book introduces in the context of immigration is already being defended inside courtrooms across the world but without the necessary theoretical basis. “This is the way we do things here,” is one way of spelling out what the legal concept of margin of appreciation means in the context of European Court of Human Rights jurisprudence. ‘Tradition’ in the Religion Clause case law of the U.S. Supreme Court likewise defends what many consider to be antiquated, Christian-centered practices of the majority contrary to the pluralistic character of present-day America. ‘Margin of appreciation’ and ‘tradition’ as legal concepts however have not been the objects of such incisive scrutiny until now. Orgad provides us with a new conceptual lens to discuss these concerns present not only in legal cases and controversies, but the broader public discourse around them.

When Jan Paderewski, the Polish premier, felt compelled to sign the Polish Minority Treaty of 1919, the first of several minority treaties to be signed at the end of the Paris Peace Conference, he wrote a long memo addressed to the so-called Council of Four – Woodrow Wilson of the United States, Georges Clemenceau of France, David Lloyd George of Britain and Vittorio Orlando of Italy - airing his complaints as a last-ditch indictment of this aspect of the war settlement. Among his most ardent complaints was that while he promised to grant full rights to all Polish subjects, he also maintained that all citizens should develop a consciousness of their duties towards the state. Invoking western liberal values, he objected to the provision of state funding for separate minority schools and cultural institutions, and insisted on the duty of all citizens in a democracy not to refuse to perform public and military service on cultural or religious grounds as these would prevent the minority’s (mostly Polish Jews) assimilation into the larger society.

These objections, in several versions, still persist today. As the first formal instantiation of minority rights in the international legal order, the 1919 minority rights regime brought to the fore an ambiguity at the heart of self-determination: is it about liberties within a liberal nation-state or a kind of substantive nationalism entitled to have its own practices as the dominant frame? Indeed, the divergent understandings of this principle were among the many hooks by which Wilson’s critics would hang him for the failures of the Paris Conference. The right to self-determination would later reemerge in the 1960s in the context of decolonization movements. Given this checkered history, it is thus striking that Orgad grounds majority rights on this principle.

That said, a discourse that acknowledges majority rights opens up new kinds of conversations about the underlying power relations that produce and shape majority-minority relations. What are the attendant historical, sociopolitical and ideological factors behind the many nominal citizens who do not really belong to their respective societies? Majority rights also allow us to reexamine an age-old paradox of liberalism which presupposes that everyone could exercise their autonomy and pursue pluralistic beliefs. What if those beliefs seek to undermine liberalism itself? It might be the case, as the book argues, that it is legitimate for liberal societies to require a modicum acceptance of liberal values and institutions without going to the extreme of indoctrination. Unfortunately, this is now an almost impossible balance to maintain given the magnitude of the public backlash against multiculturalism, especially in Europe, in the aftermath of the Brussels and Paris attacks.

Immigrants are no longer imagined with the same romanticism that J. Hector St. John de Crevecoeur once did of English settlers in the New World two centuries ago. Colonial violence, racism, global economic inequality, environmental and man-made disasters have profoundly altered the terrain of contemporary global migration. Throughout the short twentieth century, between the solidification of national borders on the one hand and the rise of human rights on the other, we have been asking these of minority rights: what kind, against whom, and under what conditions? Cultural Defense invites us to ask the same questions for majorities as well. The answers are less important than the many conversations it will certainly provoke.

Posted on 2 May 2016

ANNA SU is an assistant professor of law at the University of Toronto Faculty of Law. She is author of Exporting Freedom: Religious Liberty and American Power (Harvard University Press, 2016).