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Kapai on Substantive Equality

By Lawrence Solum

Puja Kapai (Faculty of Law, The University of Hong Kong) has posted The Doctrine of Substantive Equality and the Democratisation of Diversities (FROM CONFLICT TO RECOGNITION: MOVING MULTICULTURALISM FORWARD, M. Kearney, ed., Forthcoming) on SSRN. Here is the abstract:

The coexistence of cultural and religious minorities in liberal democratic systems presents various challenges given the complexities that inhere in the just management of a diverse populace. Minorities living in these communities suffer unequal outcomes, hardships and exclusion on various accounts. This is particularly so where the equal application of the law to all individuals results in injustice when minority needs remain unaccounted for. These circumstances have forced a critical review of the institutional mechanisms which accompany governance and the visions of justice they support. Various theories have been developed to accommodate multiculturalism and address these complexities. Liberal theorists have sought to predicate rights on the core principles of the common good and individual autonomy whilst others have debated the liberal?s dilemma. Theorists of multiculturalism have offered a communitarian critique to liberalism, suggesting variegated group rights and models of accommodation. Others, however, have pointed to the critical failures of multiculturalism.

This paper critiques some of the recent developments in discourse on accommodative mechanisms, citizenship theory and minority rights. Given the failings of existing models, it argues that deliberative mechanisms customised by the doctrine of substantive equality are better able to provide an inclusive and just political framework. The doctrine of substantive equality serves to account for the gaps in existing democratic and citizenship theories. It is an indispensable tool in just government given the state of identity politics, the history of oppression, imperialism and other marginalizations experienced by minority communities. Implementing the doctrine in the deliberative context would go a long way towards fostering minority participation and inculcating civic responsibility to create a new vision for citizenship and the dispensation of justice. The paper concludes with a call for a renewed political discourse to eliminate obstacles to a consensus-building model of democratic deliberation that caters to multiculturalism and diversity.

Full post as published by Legal Theory Blog on September 23, 2010 (boomark / email).