Working Papers

Francisco Colom González (CSIC, Spain): Intercultural Justice. Cutting Across the Cultural Boundaries of Legal Norms, in Luc Foisneau, Christian Hiebaum, Jean-Christophe Merle, Juan Carlos Velasco (eds.): Spheres of Global Justice, Vol. 1, Global Challenges to Liberal Democracy. Political Participation, Minorities and Migrations. Dordrecht, Springer, 2013, pp. 217-226. ISBN: 978-94-007-5997-8

Abstract: This chapter explores the possibilities of inter-normativity in culturally complex contexts and its relation to the idea of a reflexive or self-critical modernity. The paper looks at the debates on justice in contemporary political philosophy in order to show the shortfalls of a constructivist approach to the normative analysis of culture, while it simultaneously portrays the affinity of the communitarian approach to several pluralist currents in modern legal anthropology. The key to the cultural translation of the principles of justice is to be found in their social and subjective effectiveness and in the affinity among the social goods to be normatively protected. The paper refers to several experiences of legal pluralism with ethno-religious communities and native peoples, and to the demands of Islamic feminism, to demonstrate that it is possible to ‘read’ customary practices through the lenses of state law and to defend ‘modern’ normative intentions with traditional languages and principles.

Francisco Colom González (CSIC, Spain): The Legal Self-regulation of Religious Groups: Tackling the Challenges of Legal Pluralism in Theory and Practice, RECODE WORKING PAPER SERIES Nº 21 (January 2014) ISSN 2242-3559

Abstract: This paper focuses on the claims for legal self-regulation made by some religious minorities in Western societies. Such claims have often reached the legal system of the state, either through arbitration practices, judicial litigation on religious marital agreements or personal status laws, and they have also stirred public discussion in the political arena. Both circumstances have substantial implications for legal and political theory: whereas the interaction of religious and civil law has sometimes resulted in legal hybridization, the cultural exceptions to the rule of law are a politically sensitive issue. After reviewing several experiences with religious arbitration and the ‘interlegality’ resulting from the cultural transplant of legal norms, it is maintained that the legitimacy of these types of claims can be significantly enhanced by intercultural legal hermeneutics and democratic deliberation. These two approaches presuppose a dialogical evaluation of the principles guiding social relations. Accordingly, two complementary strategies are suggested to tackle the challenges of legal pluralism: an intercultural approach to legal interpretation, and the public deliberation on the normative purpose lying behind the possible granting of legal autonomy to religious groups.

Denise Helly (INRS, Canada): Les résistances à la justice interculturelle (French)
Abstract: This article deals with the currents of ideas opposed to the presence of religion in the public sphere. According to a French-styled ultra-fundamentalist model of laicism, which has been partially assumed in Quebec, religion, its institutions and manifestations should have no influence on public life. This article introduces the basic tenets of such position, particularly in what concerns the definition of modernity and the agency of women.

Michael Lee Ross (Peter Grant & Associates. Vancouver, Canada): Creating Constitutional Space for Indigenous Peoples: Canada’s Ambivalence.
Abstract: When Europeans first arrived on North America’s shores, there was a great variety of indigenous peoples already governing themselves and their territories according to their own political institutions and laws. As Britain began to assert sovereignty over what later became Canada, it was content to leave indigenous peoples to govern themselves largely as their forefathers had. However, as the modern Canadian state took shape, it increasingly superimposed its political institutions and laws on indigenous peoples in disregard not only of their political institutions and laws, but also of the earlier tradition of political and legal pluralism. Canada’s enactment of the Constitution Act, 1982 – and particularly Section 35 which raised the rights of aboriginal peoples to constitutional status - promised a reversal of the damaging effects of Canada’s colonialism. Despite its almost three-decade-old promise, Canada has not yielded significant constitutional space to indigenous peoples. The reason why meaningful indigenous political and legal pluralism remains a distant dream is explained in this paper by means of an analysis of the Supreme Court of Canada’s aboriginal rights jurisprudence. The main thesis is that the Supreme Court has maintained a discriminatory focus on indigenous peoples’ aboriginality and cultural difference to the near exclusion of their peoplehood and the constitutive commonalities they share with non-indigenous peoples.

Jorge Lazarte Rojas (Catholic University of Bolivia): Plurinationalism and Multiculturalism in the Bolivian Constitutional Assembly. (Spanish)
Abstract: Nowadays, plurinationalism and multinationalism are expressions commonly used to refer to societies with minority cultures within them. Both terms also imply a claim for the legitimate recognition of cultural diversity, but they allude indeed to different social realities. Their political and institutional implications differ as well. A good example of this is the definition of Bolivia as a “multinational state” in the new Constitution of the last Constitutional Assembly in Bolivia (2006-2007). This article demonstrates the political connections between multiculturalism and multinationalism and the troubling effect that the multinational principle has had on the institutional structure of Bolivia.

Asier Martínez de Bringas (University of Girona, Spain): Intercultural Policies and the Challenge of Native Peoples Rights. (Spanish)
Abstract: This article presents a description of what is meant by “indigenous cultural processes”. For this purpose it makes use of a descriptive approach to the difficulties and problems that state-led multicultural policies need to address with regards to indigenous cultural processes. It then analyzes the implications and demands for designing truly intercultural policies. Finally, it points out a series of challenges for the articulation of indigenous cultural processes from a rights-based approach.

Valeriano Esteban Sánchez and Ana López Sala (University of La Laguna – CSIC, Spain): The Crisis of the “Accommodation Practices” in Québec: the Bouchard-Taylor Commission.  (Spanish)
Abstract: This article analyses what has been labelled as the crisis of “accommodation practices” in Québec. The crisis began in 2006, when the local mass media reported a series of demands made by several “cultural communities” to mainstream society in order to accommodate their religious practices. The ensuing debate was picked up and encouraged by some political parties and found a great degree of public resonance. This paper tries to provide information about the context within which the keys of the conflict can be understood.

Kamal Mejhadi (Autonomous University of Madrid, Spain): Tolerance in the History of Islam. (Spanish)
Abstract: This work studies the extent to which tolerance was accommodated in the Islamic religion and in the history of the Muslim society. Tolerance here is considered from a double perspective: among Muslims themselves and between Muslims and other religions and communities. Theological and historical inquiry has shown that, while a considerable degree of tolerance was developed by Islam, this was often inconsistent and circumstantial, being dependent on economic, cultural, and political factors.

José María Hernández Losada (Spanish National University for Distance Education): From Imperial Toleration to Cosmopolitan Politics.
Abstract: This working paper critically examines the ways in which toleration and cosmopolitanism can be best understood in terms of the idea of a common humanity. Toleration and cosmopolitanism are frequently invoked to justify humanitarian action in our increasingly interconnected world, but the history of both terms is the history of dispossession and subordination. The narrative chosen to make this point is the Valladolid Controversy of 1550-1551, where Las Casas contested Supúlveda’s claims that violence was justified in order to bring the Native American to the Christian faith. Cosmopolitan and tolerance talk has been consequently depicted by many critics as the old rhetoric of Imperialism. However, this rhetoric —based on the model or figure of the conversation of humanity— contains in itself the link this paper aims to clarify, a link between the fate of political philosophy and the fate of political culture, which may be of some help to understand why our universal agendas so often turn sour as they confront particular circumstances on the ground.

Philip Resnick (University of British Columbia, Canada): New Worlds, New Jerusalems. Reflections on North American Identity.
Abstract: In North America, we are still waiting for the artists, writers, and cultural creators at large to begin to envisage a North American cultural space. For this to happen, there need to be histories of North America – and not only of the three distinct countries that make it up; political texts dealing with the three countries in comparative terms; philosophers and political theorists grappling with the very idea of North America, in the way that Canadian, American, and Mexican thinkers have grappled with each of their three distinct identities. What is missing, however, and this may the Achilles heel of any would-be framing of a North American cultural ensemble, are what Pierre Nora has called lieux de memoires, realms of memory, that are North America-wide in character. Perhaps geography provides the loose, unifying link for North America’s three states, with its mountain ranges in the west, oceans or seas on both coasts, and overlapping border regions. Economic integration and population exchange have certainly added significant glue. Most pertinent of all has been the congruent experiment in forging new societies in the new world - albeit as a result of conquest and displacement of indigenous peoples. The Americans are the ones who have carried this process furthest, laying the foundations for what one can properly call a new North American civilization. The Mexicans and Canadians have each been influenced by the American model, although going their own distinct and separate ways in nation and state-building – Mexico as a predominantly mestizo society, Canada as a new world multinational state. It remains to be seen whether the sense of new beginnings that has presided over the forging of each of the three North American states can lead to an enhanced feeling of cultural and political North Americanness in the 21st century.

Lasse Thomassen (Centro de Estudios Políticos y Constitucionales, Madrid): (Not) Just a Piece of Cloth: Begum, Recognition and the Politics of Representation
Abstract: To understand the politics of recognition, one must conceive of it as a politics of representation. Like representation, recognition proceeds at once in a constative and a performative mode, whereby they bring into being what is simultaneously represented or recognized. This structure has paradoxical implications. The politics of recognition is also a politics of representation in the sense that it always involves questions such as: which representations are recognized? Whose representations are they? The reverse is also true: the politics of representation involves recognition because representatives and representations must be recognized in order to gain authority. In short, we can examine recognition as representation, and there is no recognition without representation, and vice versa. This is demonstrated through a reading of a recent British legal case, Begum, where the issue at stake concerned which representation of Islam should form the basis for the recognition of Islam in the school uniform policy.

Asier Martínez de Bringas: Human Rights and cultural Diversity. The Challenges of Interculturalism
Abstract: Until very recently, cultural diversity has been absent from the discursive sphere of Human Rights. This paper deals with three elements that have conditioned the shaping of such a discourse: first, the very idea of Human Rights as a narrative, with its theoretical and legal development; second, the intercultural interpetation of Human Rights as a precondition for a non biased view of divesity; and third, the necessity to differentiate between value pluralism and cultural pluralism in order to achieve the normative equilibrium that has been sometimes termed as "complex equality".

Prakash Shah (Queen Mary, University of London): Inconvenient Marriages: what happens when ethnic Minorities marry trans-jurisdictionally according to their self-chosen Norms

Abstract: This paper presents evidence of a trend in the practice of British immigration control of denying recognition to marriages which take place trans-jurisdictionally across national and continental boundaries and across different state jurisdictions. The article partly draws on evidence gleaned from the writer’s own experience of being instructed as an expert witness to provide opinions of the validity of such marriages, and partly on evidence from reported cases at different levels of the judicial system. The evidence demonstrates that decision making in this area, whether by officials or judges, often takes place in arbitrary ways, arguably to fulfil wider aims of controlling the immigration of certain population groups whose presence in the UK and Europe is increasingly seen as undesirable. However, and quite apart from the immigration control concerns underlying such actions, the field throws up evidence of the kinds of legal insecurity faced by those whose marriages are solemnized under non-Western legal traditions and calls into question respect for those traditions when they come into contact with Western officialdom.

Solange Lefebvre (University of Montreal): Immigration and Religion: an Evaluation of Four Commissions on Divesity (French)

Abstract: Ce texte propose une lecture comparative entre quatre grands rapports ayant marqué les débats nationaux de quatre territoires sur la gestion de la diversité, successivement au Royaume-Uni, en France, au Québec et en Belgique. Dans les quatre cas, on élabore une réflexion fondamentale sur les nouveaux modèles sociaux appelés par la diversification de la population et la gestion du pluralisme religieux et culturel. Une première section rappelle les principales caractéristiques démographiques et ethnoreligieuses canadiennes. Puis le travail comparatif est mené autour de trois grands thèmes. Premièrement on aborde les controverses nationales autour de l’identité collective et la diversité. Deuxièmement la question religieuse se trouve abordée sous quatre angles : les rapports entre hommes et femmes, la notion d’accommodement raisonnable, l’école et le radicalisme. En troisième et dernier lieu, on discute les modèles nationaux, entre unité et diversité. Ces débats présentent à la fois d’étonnantes similitudes et des différences contextuelles importantes.

Angel Rivero (Autonomous University of Madrid): The new political Challenge of Religion in Europe (Spanish)

Abstract: The main idea of this article is that religion is an unexpected guest in Europe. This explains why Europe is troubled with present religious revival and pluralism. According to the hegemonic view of history in the west, history as progress, religion should disappear of this land and its social functions will be served by reason and secular institutions. In this view, religion was the source of all social malaises; reason, the main root of social order. The problem of this discourse, laicism, is not only that created religious conflict in the west but, worst, opened a global clash of civilizations. And the reason of this result is that the western universalism has strong religious roots. Indeed it is a form of secular Christianism that promises earthly salvation and redemption.This text not only points to the present predicament with religion in the West. It also shows that the old recipe to deal with the problems of religious pluralism, named toleration, is not going to work this time. Toleration was intended to deal with limited Christian pluralism but not with real religious pluralism. Thus we can't go back in time to solve the problem. The other alternative is to push modernity forward in order to go beyond religion. But this is not going to work either. Civilization, understood as the modern project of a secularized society, is not the solution but the problem. Civilization is Christian universalism secularized, and it is seen as a threat by the religions. So the growing conflict between the West and the religions of the rest of the world, even inside the Western countries, is almost inevitable.

Denise Helly (INRS, Canada): Forms of Intolerance in Canada (French)

Abstract: On observe trois formes de dévalorisation de l’immigration dans les sociétés occidentales depuis les années 1990, la xénophobie, le rejet des demandeurs d’asile et des illégaux, et l’islamophobie. Ce terme, créé en 1997 par Runnymede Trust, décrit une hostilité haineuse envers les musulmans. Nous traitons ici de formes discursives de cette hostilité par des Canadiens et non de formes comme la discrimination, la victimisation (crimes haineux) et la criminalisation (profilage, effets de dispositions anti-terrorisme).

Luciano Patruno (University of Bari, Italy): The Governmental Nomos in the European Public Sphere (Italian)

Abstract: -1. The Schmittian Nomos as a possible basis for the European order; the foucaultian governamentality as a new reason for the government of the European public sphere. - 2. The form of the new Nomos: an immediate legal power. - 3. The government of the European public sphere through the oikonomia. - 4. Concluding remarks