Difference, Dissent, and Community Identity: Striking the Balance in Rights Theory and Jurisprudence

Abstract

Striking an effective, principled balance between the right of communities to protect their distinctiveness as communities within federal states and the right of individuals to protect their distinctiveness as individuals within the community, including their right to dissent from community-imposed norms is a challenge for all liberal democratic, multinational states. Where to strike this balance is more than merely a theoretical question for law, political science and philosophy scholars, it is the stuff of democratic politics and law in a multinational state. At heart, the task is to respect individual rights and, in particular, the right to individual self-determination, without eliminating the distinctiveness of minority communities, and the right to collective self-determination in the case of national minorities, in the face of the force of liberal individualism.

While this is an important issue for all minorities, where national minorities are involved, the conflict between collective rights and individual rights runs deep. In these cases, the conflict engages the hard question of the extent of the right to self-government for national minorities within a federal constitutional system that is committed to the reconciliation of competing sovereignties. This paper reviews both the theoretical underpinnings of this debate and how, and how well, Canada has addressed the debate in balancing collective and individual rights in rights jurisprudence, in the hope of drawing out of the Canadian experience, thoughts and lessons for other multinational federations.