Three rights of citizenship for minorities
Will Kymlicka, in his Multicultural citizenship, pointed out three categories of rights for minorities within liberal democracy, which are suitable to explore European progresses in building an own citizenship, not dealing only with minorities protection, but rather strengthening their participation to the European land of rights.
Comparing American and European situations is nowadays interesting because, aside of a new constitutionalism, a new identity for the European Union is required to stay beyond it, being the Union, since the beginning, as a multi-national state though.
Multi-nationality of European Union is, actually on two sides: community and institution. In fact, most of European State-institutions (apart from Portugal and Greece), have within the same territory, ethnic, linguistic and religious minorities, who perceive themselves as communities, sharing common history, culture and territory, and defining thus nation. Frozen throughout all the Cold War, they re-started to claim for more autonomy or even independence in the nineties, in what A.D. Smith called the ethnic revival. Recognizing the latter form of multi-nationality, deeper, level, is notwithstanding, difficult in Europe, because the construction of the national identity started from the building process of the State-nations. The State-community became, then, all the territory under the same State-institution.
Focusing on North American minorities (firstly indigenous and later immigrant), Kymlicka sorts out three subsequent categories of rights, which minorities achieved, three subsequent attempts to fix some bugs within the liberal democracy: rights of self-government (for indigenous minorities), polyethnic rights and special rights of representation.
Rights of self-government concern right of indigenous minorities claiming for independence. It deals with the difficulties It would eventually lead to the right of self-determination, but more often it comes out to be administrative autonomy.
Polyethnic rights have nothing to do with multi-juridical systems: this concept, according to Kymlicka, started to come out in the 1960s, when most of the States in the West “discovered to be polyethnic (due to immigration), as well as multi-national (indigenous people). The dominant political majority eventually recognized the impossibility to assimilate immigrated minorities into the liberal mentality (anglo-conformity); and decided, rather, to promote a diffusion of every culture’s contribute to the national identity.
Eventually, the special rights of representation take a step forward from protection to expression and participation of minorities’ representatives within liberal democracy.
Kymlicka’s analysis shows how minorities’ rights passed from reconnaissance to protection and eventually to participation and representation, without those could led to re-discuss the liberal democratic framework. Coherently with North American constitutional culture, Kymlicka does not see re-foundations (as in European modus operandi) but rather amendments.
This step-by-step classification of rights fits for Europe, whose recent history is a remarkable application of functionalist “spill-over”, and moreover, it permits to compare (taking into account the other differences) American and European concepts of citizenship, forwarding considerations about the state of European citizenship.
A first consideration about European and American citizenship deals with the construction of national identity. The later United States, the process leading towards a political community starts recognizing colonies’ inhabitants’ fundamental rights, and, subsequently, a new national identity started to spring (as Tocqueville stated in his most famous “Democracy in America”). Vice versa, in Europe the construction of the national identity started from the building process of the nation and fundamental rights arrived later. The new European Constitution is actually following the path of the old American Unionism (expressed in Madison’s and Hamilton’s “Federalism”), recognizing firstly European rights (Treaty of Rome) and then trying to build a new European state, with its rights and its constitutionalism as founding part of its identity, but lacking in the national identity building process.
The land of rights and its citizenship
Europe is nowadays a polyethnic area, composed by multinational states, but still recognizes it complexion from a national (State-institution) point of view.
Referring to the first of Kymlicka’s categories of rights (self government), national minorities in Europe had their first rights as nation (not simply religious or linguistic minorities, but considered as a whole, as outlined, with their territory and culture) after the end of the Second World War, but could fully express their claims only after the end of the Cold war and dictatorships in Europe. Yet, though they could not claim for self-determination, development strategies set out for European Regions reduce the distance from minorities and their claims for autonomy.
Analysing minorities’ rights in Europe from the point of view of polyethnic rights, few immigrants in Europe can affirm they are actual subject of rights and duties, as many of them are only passive subjects of law, not admitted to decide the government they have to pay taxes to.
Finally, special rights of representation are provided within the universities, through quotes reserved for not-EU citizens. But there are no special rights to gain access to representative institutions, neither for immigrants, nor for EU women citizens.
Europe has always been polyethnic and multinational (within the same State-institution), especially (at its southern borders) because of its geographical position, but it is now recognizing its complexion only its latter feature, and limited to European national minorities.
Reasons for what Barnett Pearce would call a “mono-cultural communication form” in Europe about itself might be sought in two directions: firstly, in the function developed by the Nation-State through out all the continental history. As outlined above, State came before rights and so the national identity rose around the State-institution, rather than around the State-community. Indeed, the latter has often been a profusion of the former one. Secondly, the historical trend in European law has been systemizing the subsequent, fluid, cultural sedimentations into written Constitutions, institutionalizing not only the juridical and political system, but the symbolic level, which leads to discuss a community’s identity (from the institution to the community). Furthermore, reforming a Constitution means to reform every relation within it, thus also the political symbolic field in which that Constitution took place.
European constitutionalism is actually lacking in what is able to perform at its best, that is to systemize, organizing rights into the coherent whole of a constitution, producing new original values, reflecting the society beyond it, not rather forcing it to follow a juridical path. Amending is not in European constitutional features, a new spur to re-discuss European identity should appear in order to pass, from social reconnaissance, to political participation of European minorities.