Liav Orgad - The Cultural Defense of Nations: A Liberal Theory of Majority Rights

OXFORD CONSTITUTIONAL THEORY

Series Editors:

Martin Loughlin, John P. McCormick, and Neil Walker

OXFORD CONSTITUTIONAL THEORY

Series Editors:

Martin Loughlin, John P. McCormick, and Neil Walker

Oxford Constitutional Theory has rapidly established itself as the primary point of reference for theoretical reflections on the growing interest in constitutions and constitutional law in domestic, regional, and global contexts. The majority of the works published in the series are monographs that advance new understandings of their subject. But the series aims to provide a forum for further innovation in the field by also including well-conceived edited collections that bring a variety of perspectives and disciplinary approaches to bear on specific themes in constitutional thought, and by publishing English translations of leading monographs in constitutional theory that have originally been written in languages other than English.

The Cosmopolitan Constitution

Alexander Somek

The Structure of Pluralism

Victor M. Muniz-Fraticelli

Constitutional Courts and Deliberative Democracy

Conrado Hbner Mendes

Fault Lines of Globalization

Legal Order and the Politics of A-Legality

Hans Lindahl

The Cosmopolitan State

H Patrick Glenn

After Public Law

Edited by Cormac Mac Amhlaigh, Claudio Michelon, and Neil Walker

The Three Branches

A Comparative Model of Separation of Powers

Christoph Mllers

The Global Model of Constitutional Rights

Kai Mller

The Twilight of Constitutionalism?

Edited by Petra Dobner and Martin Loughlin

Beyond Constitutionalism

The Pluralist Structure of Postnational Law

Nico Krisch

Constituting Economic and Social Rights

Katharine G. Young

Constitutional Referendums

The Theory and Practice of Republican Deliberation

Stephen Tierney

Constitutional Fragments

Societal Constitutionalism and Globalization

Gunther Teubner

Liav Orgad

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For my father
Eliyahu (Eli) Orgad
19532005

The changing patterns of global immigration have initiated a new form of majority nationalism. In recent years, liberal democracies have introduced an increasing number of immigration and naturalization policies that are designed to defend the majority culture. This trend is fed by fears of immigrationsome justified, some paranoidwhich explain the rise of extreme right-wing parties in the West. Liberal theory and human rights law seem to be out of sync with these developments. While they recognize the rights of minority groups to maintain their cultural identity, it is typically assumed that majority groups have neither a need for similar rights nor a moral basis for defending them. The majority culture, so the argument goes, can take care of itself. This book shifts the focus from the prevailing discussion of minority rights and, for the first time, directly addresses the cultural rights of majorities. The findings reveal a troubling trend in liberal democracies, which, ironically, in order to protect liberal values, violate the very same values. The book criticizes this state of affairs and presents a liberal theory of cultural defense that distinguishes between justifiable and unjustifiable attempts by majorities to protect their cultural essentials. It formulates liberal standards by which liberal states can welcome immigrants without fundamentally changing their cultural heritage, forsaking their liberal traditions, or slipping into extreme nationalism.

I have always looked forward to writing the acknowledgements part of the book yet now, as I begin work on it, I am at a loss for words realizing how many individuals and institutions assisted me in this endeavor. During the years in which this book took shape, I was privileged to obtain the help of many friends and colleagues who inspired my thinking on issues pertinent to this topic. Ideas grow and develop over time and it is almost impossible to pinpoint all the people whose sage advice and guidance have made the book possible. Acknowledgements, however detailed, are a poor medium by which to express my heartfelt thanks for the support I have received.

Writing this book would have never been possible without the immense help that I have been fortunate enough to receive from friends, colleagues, and students, whose thoughtful discussions and excellent suggestions benefited me at different stages of the research. I owe a great intellectual debt to David Abraham, Shlomo Avineri, Keith Banting, Aharon Barak, Daphne Barak-Erez, Jrgen Bast, Linda Bosniak, Joseph Chamie, Mishael Cheshin, David Coleman, Noah Feldman, Monique Foudraine, Ruth Gavison, Anne Gladitz, Dieter Grimm, Malachi Hacohen, Kay Hailbronner, Dora Kostakopoulou, Shay Lavie, Natan Lerner, Stephen Macedo, Avishai Margalit, Michele Manspeizer, Martha Minow, Noah Pickus, Yoram Rabin, Guy Raveh, Daphn Richemond-Barak, Rahel Rimon, Adam Shinar, Jennifer Shkabatur, Avi Soifer, Daniel Thym, Kyriaki Topidi, Mark Tushnet, Patrick Weil, Alexander Yakobson, and Yaffa Zilbershatz. Offering a mere list does injustice to the hours, and often days, which so many of these people spent listening to my arguments, reviewing drafts, and challenging ideas.