Abstract
The reconciliation of minority issues is one of the most pressing challenges with which contemporary democracies are confronted. It has been addressed in at least two distinct ways. The first, ex ante legem, focuses on the deliberative phase and establishes criteria for the distribution of rights to participate in the public debate. The second, ex post legem, looks at the post-law-enactment phase and finds the key to reconciling minority issues in the possibility of repealing or amending a controversial law. This chapter will critically consider the former approach and defend the latter, paying special attention to its formulation in terms of granting particular exemptions from generally applicable laws. It will do so with a view to answering the following question: how should a liberal democratic polity reconcile minority claims whilst preserving the autonomy of all of its citizens?
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- 1.
I should like to emphasise that, although it goes almost without saying that the minority views with which I am concerned include religious beliefs, the latter will not play any distinctive moral or legal role in my account.
- 2.
I shall address in due course the multiculturalist contrasting view according to which culture (including religion) could be the source of absolute morality that renders (the prohibition of) certain acts the source of personal shame or loss of identity.
- 3.
I shall set aside for my current purposes all issues related to the rationality of political participation through voting, and the capacity of an individual actually to make a difference with her individual expression of preference. Similarly, for the purposes of the present work, I will not address issues related to the engineering of electoral and voting systems.
- 4.
For a criticism of the “hard and fast” distinction between national minorities and communities of immigrants see Festenstein (2005: 76–77).
- 5.
For an influential account of deliberative democracy see Gutmann and Thompson (1996).
- 6.
For a multi-voiced criticism of Gutmann and Thompson’s account of deliberative democracy see Macedo (1999).
- 7.
See Eisenberg and Spinner-Halev (2005). This raises the issue of the possibility of granting a right to exit as a means to preserve the autonomy of dissenting group members and protect them against cultural oppression. I shall leave this important issue aside for the purposes of the present chapter and treat it separately in another work. For a discussion see Barry (2001), Kukathas (2003) and Phillips (2007).
- 8.
The “billiard-ball” conception of culture has been attacked also in Tully (2002).
- 9.
I should add that the R&E approach might be useful to address also those situations in which those holding minority views about justice fail to convince the state, or enough of their fellow citizens, that the contested law is unjust and should be changed, and thus seek at least to be sheltered from this injustice.
- 10.
Another ex post legem strategy, which I shall not address here in full, is known in criminal law as cultural defence. A “cultural defence maintains that persons socialized in a minority or foreign culture, who regularly conduct themselves in accordance with their own culture’s norms, should not be held fully accountable for conduct that violates official law, if that conduct conforms to the prescriptions of their own culture” (Magnarella 1991: 67). Despite its obvious interest, I shall not dwell on this legal instrument as it suffers from the “cultural-membership” bias I have already contested above. For some critical remarks on the issue, see Phillips (2007: pp. 80ff).
- 11.
Conformity of primary legislation to the Human Rights Act 1998 and EU law constitutes an exception.
- 12.
This reading envisages a more modest role for judicial review than that suggested by Ronald Dworkin. According to Dworkin, courts should exercise an active and creative control over the output of legislation so as to ensure that basic rights and liberties are in fact respected. Dworkin’s position may be found in Dworkin (1977, 1990). For a discussion see Waldron (1999: esp. pp. 211–231).
- 13.
The idea that JR increases justice in a democracy is contested in Waldron (1999: esp. pp. 282–312). I have no room to enter into Waldron’s challenging criticisms here, but it will suffice to say that I endorse Shapiro’s arguments in full as they seem very well-equipped to rebut Waldron’s reservations.
- 14.
For an expanded discussion and qualification of such conditions see Ceva (2010) and Ceva (forthcoming).
- 15.
This specification seems important as, to be sure, some claims that are of great relevance to a person may be seen as trivial by others. Accordingly, their translation into a ‘common currency’ may help in revealing their exact extent. What makes for a publicly accessible case would depend on the public values informing the political life of the liberal democratic polity within which the claim for exemption is negotiated. The task of developing a more precise formal account of this matter exceeds the limited ambitions of this work and will have to be carried out elsewhere. Nonetheless, it is plausible to presume that accessible reasons would be those appealing to either generally accepted principles (e.g. freedom of conscience, non discrimination) or widely spread – though controversial – ethical views (e.g. protection of life in all its forms).
- 16.
This is particularly important to avoid that exemptions be requested on obscure cultural grounds against the application of legal (and penal) norms meant to grant specific individual rights vis-à-vis certain offences (for example, honor killing). Such a preoccupation has been central to the literature discussing the moral justification of the so-called cultural defense in criminal law. See Renteln (2004) and Waldron (2002).
- 17.
For a similar account see Quong (2006: 53–71).
- 18.
Such an evolution from instances of conscientious objection against the law to legal exemptions has characterised a case involving animalist protests in the country where I live, Italy. In 1989, the staff of a research laboratory at the Rizzoli hospital in Bologna refused on the grounds of conscience to comply with the management’s decision to employ animals in tests and experiments. The protest lead 3 years later to a formal recognition of the exemption for objecting technicians and, in 1993, to a law recognising a right to conscientious exemptions to all medical staff from being involved in laboratory tests on animals nationwide.
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Acknowledgments
An earlier version of the paper was presented at the MANCEPT seminar at the University of Manchester. I am grateful to all participants for very stimulating discussions. The distinction between ex ante and ex post legem approaches is introduced and developed into a full account of conscientious exemptionism in Ceva (forthcoming). Thanks also to Monica Mookherjee and Federico Zuolo for written comments
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Ceva, E. (2011). An Ex Post Legem Approach to the Reconciliation of Minority Issues in Contemporary Democracies. In: Mookherjee, M. (eds) Democracy, Religious Pluralism and the Liberal Dilemma of Accommodation. Studies in Global Justice, vol 7. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-9017-1_9
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