Collective Remedies for Minorities: A Procedural Proposal

Research output: Types of ThesisDoctoral Thesis

Abstract (may include machine translation)

There is a gap between minority claims and international minority rights guarantees or minority rights on national levels. Where justified claims are systematically thrown out by both political and judicial bodies, that marks a failure of the legal system to live up to the expectations of law that protects all equally. The thesis argues that there is an area where the rejection of minority rights claims is illegitimate and where a solution is available that does not challenge the basic structure of states and legal systems. I present a proposal that builds on a type of judicial procedure, collective procedures or group litigation, in order to bridge the gap between minority claims that have a decisive collective element and the tendency in many legal systems to screen out such claims as non-enforceable. The proposal covers claims from more past-centered, historical injustice claims, often based on large-scale crimes, to present-day discrimination claims including desegregation in education and language use. The fact, however, that the proposal seeks accommodation without challenging the overall setup means that many autonomy related claims, most importantly territorial autonomy and self-determination, might fall outside the scope of the thesis. The adoption of a rule allowing for collective procedures, if it targets or is also applicable to the types of claims raised by minorities, will help expand the ability of law and the courts to engage, in more meaningful ways, with minority claims. More specifically, the proposal seeks to expand the ability of the legal system to consider claims, arguments, proof and context that go beyond a strictly individualist approach. The proposal brings important benefits like better access to justice, allowing a challenge to wider social practices and statistical evidence on group-level that is not easy to translate to proof on the individual level; judicial efficiency; contextualization that can tame hidden biases; recognition and empowerment, giving voice to victims. Judicial group recognition offers various ways to address individual and intragroup variation. This will limit the possible dangers of full and permanent recognition of groups, most importantly the possible limiting effect on group members, in line with liberal multiculturalist accounts. The procedural approach avoids the sensitive question of ‘collective minority rights’ while allowing the enforcement of claims that can only be construed on the level of groups. The thesis is meant to be a contribution to bridging the gap between minority claims, framed as group rights, and minority rights limited to individuals. While the thesis seeks to preserve the individual-based liberal view, maintaining that it is ultimately on the individual level that we should measure the benefits of rights enforcement, the expansion of rights enforcement can link back to how rights are conceived. Once rights with an important collective element are endorsed in judicial awards, that can reinforce the group context of rights even for those who are otherwise unwilling to depart from a strict individualist reading of rights.
Original languageEnglish
QualificationPhD
Awarding Institution
Publisher
StatePublished - 2016

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