To what extent should the law cover multiculturalism?

Traditional uniform application of UK law had not been questioned until the recent rise in globalisation. The rise of globalisation has lead to the growth of multiculturalism in cosmopolitan cities, incurring debates on how far a liberal state should accommodate the change in society. This article argues that the current impartiality is more practical than the utopian idea that each person’s identity has to be accommodated. Discriminatory behaviour should be the only occasion whereby the law should be altered to allow social cohesion. This will be argued through the careful consideration of the criticisms surrounding Egalitarian Liberalism (EL), as its principles are applied in UK courts.

Criticisms must be placed in context, hence a discussion on the principles of EL must take place first. Ironically, the political philosophy is heavily based on the Christian principle that ‘God loves us all equally,’ [Richard Arneson, 'Egalitarianism', Stanford Encyclopedia of Philosophy (1st edn, Stanford University 2002)], which has been translated to mean that there should be a uniform application of the law. Almost immediately it may appear that it is incompatible with the Hindu caste system suggesting it values Abrahamic religions more. The religious influence makes it difficult to see how the application of EL can celebrate different identities, particularly when it encourages applying the law in a racially blind manner. However, Kymlicka states that people can only regard themselves as autonomous beings when they have access to a societal culture of choice [Will Kymlicka, Liberalism, Community, And Culture (1st edn, Clarendon Press 1989), chapter 8]. This implies that the so-called colour-blind approach of traditional liberalism must be complemented with the acknowledgement of minority rights to protect their identity [Ibid chapter 26]. Kymlicka successfully argues this in a manner consistent with EL, demonstrating that the so-called drawbacks of EL can be addressed without conflicting with its main principles.

Kymlicka’s argument has been resolved through discrimination laws such as the Equality Act 2010, which aims to uplift both minority groups and minorities within minorities. Susan Okins argues that there is a confliction between liberal states’ norms of gender equality and that of some cultural groups [Susan Moller Okin and others, Is Multiculturalism Bad For Women? (1st edn, Princeton University Press 1999)]. She contends that ‘cultural group rights do often (in not-so-obvious ways) reinforce existing hierarchies’ [Ibid]. EL’s principle of neutrality has aided the diminution of patriarchy within some cultures that would otherwise be difficult to resolve. An example of this are the literacy rates in Niger. Notably, 11% of women are literate, which is the lowest rate in the world, but at the same time it has the highest rate of child marriages in women. Within the UK, Nigeriens have to comply with the laws and must be in education until the age of 18 [Education and Skills Act 2008, s1(b)]. Furthermore, it is illegal for anyone to marry under the age of 16 [Age of Marriages Act 1929]. This uplifts the position of Nigerien women within their communities and empowers them to break their cultural norms. Hence the courts’ aim to accommodate the needs of multiculturalism only if it is to avoid the discrimination of a group – in this case Nigerien women. Aside from this, UK courts argue that there are no other situations where the state should accommodate the needs of an identity as ‘we cannot afford the luxury.’[Smith v Employment Division [1990] 494 US (1990)]. Such an approach can be argued to promote the idea of privilege which is inconsistent with EL principle of neutrality.

Strict imposition of anti-discriminatory law is fundamental to the prevention of privilege within a multicultural society. Without it, it can lead to an intolerance of other cultures as seen in France, an extreme Liberal state. The French claim that gender equality is a ‘national value’ [Decision no. 308591, Conseil d'Etat, 27 June 2008, p. 1.], which has led to the policing of Muslim women under unusual pretences. The rationale for the ban of face veiling has ‘dual character, both emancipatory and disciplinary.’ [Eoin Daly, 'Political Liberalism And French National Identity In The Wake Of The Face-Veiling Law' (2013) 9 International Journal of Law in Context]. The Republic aims to liberate veiled women from their male dominated cultures, whilst also demeaning any religious expression in the public sphere ‘for the sake of social cohesion.’ [Decision no. 308591, Conseil d'Etat, 27 June 2008, p. 1]. The danger in this is that it negates the rights of an individual and instead places a higher importance on societal rights. In fact, French nationalists are granted a privilege undermining the concept of legal impartiality. Therefore, the application of the law cannot completely negate the differences of an individual, as it further marginalises them and creates a system based on favouritism.

The principle of neutrality has been criticised by modern thinkers, such as Charles Taylor who pioneered the Politics of Recognition (PR). Followers of PR, place a higher value on the recognition of differences, believing it to be a vital human need that the law needs to reflect [Charles Taylor and Amy Gutmann, Multiculturalism And "The Politics Of Recognition" (1st edn, Princeton University Press 1992) page 26]. The foundation of this allegation is that societal structures and laws benefit the majority demographic in the UK and do not take minority groups into account. For instance, Sunday trading rules predominantly benefit Christians. Civil rights movements aim to combat the issue that this raises – that the image of a human is a white, western, educated and middle class/rich man. This alienates minorities such as the black person from their society and their body, owing to the fact that the world is defined in terms of ‘whiteness' [Frantz Fanon, Black Skin, White Mask (1st edn, Grove Press 1967)]. EL does not take this into account, hence Taylor aimed to address these issues by focusing on the idea that people need to belong to a community to be happy and to elevate self-esteem [Charles Taylor, Philosophy And The Human Sciences (1st edn, Cambridge University Press 1985) page 190]. Taylor argues that EL is too individualistic and negates the human need to belong to a community to feel happy and satisfied [Frantz Fanon]. Therefore, it can be argued that Taylor would contend that the application of the law should change according to the identity of an individual.

However, a mere recognition that humans need to belong to a community does not alleviate any issues. PR has the potential to incur racial conflicts instead of alleviating them, thus preventing integration in a multicultural society. PR school of thought accentuates differences and negates the similarities of communities, whereas EL disregards the differences and makes the assumption that all individuals are equal. Taylor’s construction of collective identity is therefore primordial, which poses a risk of ethnocentrism, as it causes separation and hostility amongst groups [Sasja Tempelman, 'Constructions Of Cultural Identity: Multiculturalism And Exclusion' (1999) 47 Political Studies page 23]. This is particularly dangerous between communities that have political unrest such as Kurds, because through disregarding the similarities, PR is empowering their oppressors. Therefore, if PR was to be applied within legislation and individual identity was accommodated, it could potentially worsen the disputes. Neutrality would be more effective, both practically and theoretically, because we value and protect that religious divergence through anti-discrimination laws [Age of Marriages Act 1929].

Practically, any courts that apply their laws inconsistently to accommodate any individuals’ need would be accused of being unjust, and the context of multiculturalism does not excuse this. Non-uniform application of the law would render law meaningless, as each ethnic or religious group could accommodate the law to their identity. This would lead to a floodgate of cases where individuals would attempt to alter the law to accommodate their identity. This was highlighted by Scalia LJ, who suggested that an accommodation to multiculturalism could lead to the opening of ‘constitutionally required religious exemptions from civic obligations of almost every conceivable kind' [Age of Marriages Act 1929]. There are two possible dangers with this: total anarchy and disregard for the law, and the reintroduction of privilege which EL aimed to dismantle. Therefore, applying the law in a liberal state neutrally is the best way to address multiculturalism.

Followers of PR may suggest that the neutral application of the law is evading the purpose of discrimination laws. Eweida suggested that Article 9 would be empty of content if it did not go beyond merely safeguarding manifestation of belief [Case of Eweida and Others v The United Kingdom [2013] ECHR 37, para 73]. This was seen in Shabina Begum [R (SB) v Govenors of Denbigh High School [2006] UKHL 15, [2007] 1 A.C. 100], where a student refused to comply with her school uniform, believing it to go against her religious beliefs. Despite the facts of the two cases being similar, as they concern uniform policies, what separates them are the defendants’ attempts to accommodate their religious needs. In Eweida, the airline completely disregarded her right to religious expression, hence it was a clear form of discrimination. However, in the case of Shabina Begum, Baroness Hale made a point to state that Shabina ‘changed her mind about what her religion required of her, rather than the school which had changed its policy' [Case of Eweida and Others v The United Kingdom [2013] ECHR 37, para 92]. Interestingly, the fine line between discrimination and extreme political correctness has been addressed by the courts following the two cases in a manner that is consistent with the anti-discriminatory laws and EL application of the law.

A multicultural liberal state has a responsibility to apply the law uniformly, purely because of its diversity. Both theoretically and practically, it has become apparent that EL’s neutrality is the most suitable approach to applying the law in a multicultural society. However, the neutrality has to be supported by anti-discrimination laws to uplift the oppressed and place them on an equal level as the rest of society. Anti-discrimination laws rebalance the harshness that could arise following an extreme application of EL. This does not threaten the individuality of a person in the way that Politics of Recognition asserts, as EL accentuates the similarities between groups instead of differences. Hence, in practical terms, without a uniform application of the law the courts will be accused of granting privileges to groups. However, on the basis of the author’s analysis, the judiciary have successfully identified the distinction between discrimination and extreme political correctness.