HILJ Symposium: Constraining Language Through Culture

[Efrat Arbel holds an SJD form Harvard Law School and is a postdoctoral fellow at the University of British Columbia Faculty of Law.]

This post is part of the Harvard International Law Journal Volume 54(1) symposium. Other posts from this series can be found in the related posts below.

Moria Paz’s article, “The Failed Promise of Language Rights: A Critique of the International Language Rights Regime,” is an important contribution to the literature on language rights. Paz advances a timely and insightful critique of judicial and scholarly treatments of language claims. Through a careful analysis of international and regional rights instruments, cases, and scholarly literature, Paz identifies a gap between the promise of language rights protection as articulated in these texts and the meaning these rights acquire in practice. At the heart of her analysis is a critique of the existing legal orthodoxy on language rights, and more specifically, its reliance on the vocabulary of human rights. Paz argues that approaching language claims through the rubric of human rights risks undermining the goals that motivate these claims, namely, effecting the distributional changes necessary to ensure linguistic diversity and protect minority language use. Arguing that the language of human rights is ultimately ill suited to achieve a robust protection of linguistic diversity, she advocates instead for situation specific analysis cognizant of political and material realities and demands. Such an approach, Paz argues, can better advance the structural changes and distributional demands that underpin language claims.

Through a detailed analysis of 133 cases from the European Court of Human Rights (ECtHR), the United Nations Human Rights Committee (UNHRC), and the Inter-American Court of Human Rights (IACHR), Paz finds an unexpected alignment between these disparate bodies. Her analysis reveals an international status quo that fails to live up to the promise of protecting language rights as human rights. As Paz convincingly shows, the ECtHR, UNHRC, and IACHR take a narrowly utilitarian approach to language. The remedies they issue offer only pragmatic management of language claims, rather than meaningful substantive accommodation. All too often, these decisions accommodate minority language to facilitate communication with the majority language group, and offer a thin measure of protection that lasts only until the minority language speaker transitions into the linguistic mainstream. No less significantly, the decisions often oblige minority language speakers to bear the lion’s share of the monetary costs that come with linguistic redistribution. As Paz’s analysis makes clear, this approach does not view minority languages as assets to be celebrated and accommodated, but rather, constructs them as obstacles that minority language speakers must overcome to assimilate to the linguistic majority. To this extent, she argues, this approach fails to extend robust accommodation of linguistic diversity.

Unpacking the unstated assumptions that underpin – and ultimately, constrain – language claims, Paz charts the curious role played by “culture” in the discourse on linguistic protection. She draws on prominent scholarly writing and legal texts to show that the protection of minority language rights as human rights is closely associated with culture. This approach emphasizes the cultural importance of language, and views linguistic accommodation as an integral part of a larger policy of cultural diversity and rights protection. Paz identifies two core problems with this approach. First, she shows that this approach is premised on a limited–indeed, incorrect–understanding of culture that does not facilitate the protection of language to the extent that it could. Second, she argues that the narrow emphasis on language-as-culture / culture-as-language elides questions of distributional costs and material realities that underpin language rights claims. In what remains of this note, I address each of these claims in turn. I conclude by questioning whether the situation specific accommodation Paz calls for can be achieved by a shift in judicial understandings of culture, rather than a move away from culture as a whole.

Paz argues that the vocabulary of human rights asserts a link between culture and language that presumes one to be constitutive of the other. Through a survey of scholarly literature and legal texts, Paz shows that these sources consistently depict language as central to cultural identity and vice versa. Language and culture are presumed as authentic reflections of one another; each is constructed as a vehicle through which the other finds expression. But as Paz convincingly shows, this discursive practice mistakenly conflates the act of speaking a minority language with the status of belonging to a minority culture. No less significantly, it depicts – and in turn, constructs – minority culture as coherent, knowable, and made transparent through language. In reality, neither linguistic identity nor cultural identity exists as stable priors. Both are fluid and kaleidoscopic, not bound by an essential correlation, and rather more complex than these formulations would have one believe. As Paz points out, it is actually rather “difficult to make sense of what culture means” (553).

Indeed, as Bonnie Honig writes, culture cannot be singularly defined. It is a “way of life, a rich and timeworn grammar of human activity, a set of diverse and often conflicting narratives whereby communal (mis)understandings, roles, and responsibilities are negotiated.” Bonne Honig, “My Culture Made Me Do It” in Is Multiculturalism Bad for Women?, at 39. Homi Bhabha similarly cautions against formulations that depict culture as a stable prior. Such formulations, he posits, “disavow the complex, often contradictory contexts and codes–social or discursive–within which the signs and symbols of a culture develop their meaning and values as part of an ongoing, transformative process.” Homi Bhabha, “Liberalism’s Sacred Cow” in Multiculturalism, supra, at 81. While Honig and Bhabha focus on formulations that construct culture as oppositional to rights, their critiques apply equally to formulations that construct culture as constitutive of rights–in this case, language rights. An approach that views culture as internally homogenous and coherent obscures the fact that culture is always internally contested and cannot be defined by reference to a single set of interests or claims. This approach fails to recognize important tensions and conflicts within culture. It fails to recognize that culture, as Honig explains, is a “living, breathing system for the distribution and enactment of agency, power, and privilege among its members and beyond.” Honig, supra. Rarely are those privileges distributed “along a single axis of difference,” (id) as the discursive practice Paz surveys seems to presume.

Interpreting language rights by reference to a monolithic understanding of “culture” risks undermining the very interests and considerations at stake in these claims. As Paz clearly demonstrates, this approach often yields pragmatically limited remedies that do not offer meaningful mechanisms by which to recognize and protect linguistic diversity. Such an approach fails to capture that particularities of how language is informed by–and informing of–culture. No less significantly, it fails to capture linguistic disparities, extant power imbalances and material differences within culture. In so doing, this approach overlooks and undermines a host of important considerations that are essential to making sense of language claims.

Paz identifies a central problem with this approach. The narrow emphasis on language-as-culture / culture-as-language, she argues, elides questions of material costs that underpin language rights claims. This approach fails to acknowledge – and therefore, to account for – the concrete distributional realities that inform the broader relationship between culture, language, and rights. The result is discursive practice that privileges a narrow and incorrect understanding of the relationship between culture and language, and in so doing, does not give sufficient attention to crucial question of distributional costs.

This is an important argument, as it goes to the core of Paz’s critique. As Paz states, language rights claims are demands for new allocations of power, waged against a reality of scarce and highly guarded resources. Vindicating these claims thus involves more than declaratory statements, it requires attention to distributional implications and material costs. An approach that fails to recognize these costs, Paz cautions, risks “masking the reality on the ground instead of changing it” (557). The narrow focus on “culture”–itself constructed in all too narrow ways–can often obscure who bears the costs of upholding language demands and who benefits from the privileges they bestow. In so doing, this approach often unwittingly erects serious barriers for minority language speakers.

This is where Paz identifies the failed promise of language rights: in its narrow focus on the constructed link between language and culture – expressed in and by the language of rights – this discursive practice does not recognize the material and distributional realities at stake in language disputes. As a result, it risks undermining the very enterprise of protecting language claims. The accent on culture, she argues, does not advance language claims but rather muddies the real issues at play. For these and other reasons, Paz advocates a move away from the language of rights and its focus on culture. She advocates instead for situation specific analyses that encourage creative political possibilities for action and real structural changes to society.

Approaching language rights claims from Paz’s perspective can open up new possibilities for thinking about – and moving towards – more robust protection for linguistic diversity. A situation specific analysis has potential to bring material and distributional considerations to the foreground of the linguistic rights debate, and to facilitate the change Paz calls for. Reflecting on Paz’s critique, I question whether the move away from culture is necessary for this worthwhile enterprise. Perhaps what is needed is a reoriented understanding of culture. Put another way, perhaps what is needs is a move deeper into culture, not away from culture. A move deeper into culture might yield an understanding of culture as fluid, multifaceted, and internally contested and thus encourage more nuanced juridical recognition of the power dynamics and distributional realities at play. Such a move might make it easier for decision makers to recognize and advance the structural changes and distributional demands that underpin language claims. Indeed, such a move might facilitate–rather than impede–the situation specific analysis Paz calls for. Whether this move is possible absent the human rights rubric Paz so emphatically rejects, however, is a different question altogether.