Universality, Personal and Social Identity, and Law

Abstract:     
This paper explores some ways in which law is rightly both universal and particular. Individual and social identity is partly a consequence of, as well as a basis for, self-determination by free choice. Moreover, in the deliberation that precedes free choice, establishing and maintaining identity should often figure as an opportunity, a good in itself. Dworkin's "integrity", linked as it is to the "personification" of a specific political community, witnesses to this. One important consequence of and basis for self-determination is marriage, and the ascent from family to state is made generally feasible by sharing of language in all its nuance. The proper jurisdiction of law is public good, and political parentalism is unsound. But Dworkin's contention that laws made for public good on the basis of specific conceptions of human good are denials of equality of concern and respect is mistaken; the varying arguments he has used to defend it are unsound. Equally unsound is Raz's contention that to seek to require immigrant groups to assimilate, e.g. linguistically, is insulting. A policy of requiring assimilation need not be motivated by any disrespect for immigrant cultures, but may seek merely to avert the social evils attendant on e.g. absence of common language, evils well identified by Raz himself. And laws predicated on the judgment that some immigrant culture is inferior in ways that directly or indirectly threaten public good may be as respectful of the members of that culture as justice and humanity require. Raz's support for liberal multiculturalism does not cohere with his support for national self-determination, and by neglecting the possibility and desirability of justly discriminating on cultural grounds against certain would-be immigrants fails to reply to the (hypo)thesis that the political culture he calls liberalism is self-destructing.

Working Paper Series