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Cultural Defense of Nations: A Liberal Theory of Majority Rights

Awarded Scholars

Liav Orgad , New York University
Project Date: December, 2012
Award Amount:$33,500
Project Programs: Immigration

Liberal theory and human rights law recognize the right of minority groups to maintain their unique cultural identity. Majority groups have not, thus far, been assumed to have need of a similar right. Receiving societies initially expected immigrants to become similar to natural-born citizens by a long residency requirement. However, immigrants often concentrate geographically and maintain close ties with their home country, creating communities that physically reside inside the country, but culturally remain outside. Today, with close to 214 million international migrants worldwide, majority groups increasingly feel a need to protect their culture. Can culturally distinct mass immigration be reconciled with nations seeking to preserve their culture? If certain elements of the culture of majority groups are vulnerable, should these groups have a legal right to defend fundamental elements of their culture?

The use – or abuse – of cultural criteria in immigrant selection may be perceived as illiberal and illegal; cultural defense policies of liberal democracies may violate the same values they seek to protect. Liav Orgad will address this “paradox of liberalism” in his proposed book “Cultural Defense of Nations: A Liberal Theory of Majority Rights”, which will discuss the justifications and limits of cultural rights of majority groups from a liberal perspective. Orgad will address two simple but important questions: 1) Is the cultural continuity of majority groups a legitimate reason to restrict immigration and access to citizenship? 2) Is culture a legitimate criterion to restrict immigration and access to citizenship?

In the book, Orgad plans to examine and compare the immigration laws and naturalization processes of the United States, several Western European countries, Israel, and Japan. He will draw attention to a series of immigration laws designed to defend cultural rights of majority groups by using the immigrant’s cultural perceptions and beliefs as a selection criterion. Orgad aims to expose the rising power of culture in immigration selection – a trend which refutes the generally-accepted proposition that access to citizenship is being liberalized. He also proposes to develop a theory of cultural defense that distinguishes justifiable and unjustifiable efforts by states to protect their cultural heritage and seeks to develop a liberal concept of cultural defense – National Constitutionalism – as an instrument by which liberal democracies could pursue legitimate cultural goals without recourse to the more extreme measures recently adopted or proposed in several countries.

Orgad will use both archival and empirical research. In particular, he will analyze immigration statistics, legislation, and jurisprudence in the United States and other designated countries, and carry out field interviews with officials, practitioners, and immigrants. A global survey and case-studies will provide a comparative perspective. The focus of the project, however, will be American law because Orgad sees the American (and the French) Revolutions as the starting point of the development of the modern institution of citizenship. The U.S. also has the richest body of case-law on naturalization issues, and many of the issues that are now mushrooming in Europe have been previously addressed in U.S. courts.