Nation States and Minority Rights : A Constitutional Law Analysis
Abstract: There are approximately fifteen thousand cultures in the world, five thousand ethnic communities, and over six hundred living language groups. There are, however, only approximately 192 nation states. Many of the minority communities claim the recognition of their cultures and of the individual’s rights to freely maintain and develop a cultural identity. In the democratic nation state, where the nation has the power to enforce laws in accordance with its interests, experiences and moral values, the demands of minority groups are not always met. On the contrary, it often seems as if the content and structure of laws is the actual cause of this dissatisfaction.The study takes as a starting-point the impact of the norms of inclusive democracy and of the "color-blind" nation state on modern constitutionalism and on cultural minorities. Through an analysis of the concepts of democracy and of the nation state it is established that cultural minorities and their normative orderings are at risk of being internally excluded from the decision-making and law-making processes. One effect of that exclusion is that minorities rely on their own "private" structures and normative orderings for solving conflicts that otherwise are solved by "state" law. In the end this tendency of applying private solutions can lead to lack of moral legitimacy in of the constitutional order. This tendency and, furthermore, the risk of infringements of the principles of human dignity and equality that follows upon democratic exclusion, requires that states adopt constitutional minority rights that compensate and protect minority cultural identity. Such rights are consequently justified by these three principles, as well as defined by them.Using these three grounds of justification as a point of departure, an instrument for constitutional and comparative constitutional analysis is developed. The instrument consists of four categories: 1. the rights to the inviolability of cultural identity, 2. the right to equality before and in the law with regard to cultural identity, 3. individual cultural rights and 4. cultural group rights. It is also used in an analysis of the Hungarian constitutional order. Hungary has adopted a modern, complex and rich system of minority rights. The fundamental principle in the constitution rules that the state is a multi-nation state and that the minorities participate in the power of the people. Laws are also adopted that enforce this principle. After an analysis of the complaints against the minority legislation, however, the picture is slightly changed. It seems as if the national myth with its roots in the Habsburg Hungary and the view on "the others", are influencing the implementation of the minority rights. Add to this that the justification of the minority rights has a blurred relationship to the wish for reciprocity with the neighbouring states where several million ethnic Hungarians live. It is concluded with the help of the instrument that the deeper layers of law in the constitutional order are influenced by a canonical narrative in which Hungary is still the dominant nation in the region and the state structure is federal, relying on borders of ethnic groups.From the analysis it is also established that there are three main approaches towards minorities in nation states. The advantages and disadvantages of these approaches are discussed and evaluated with regard to human dignity, equality and inclusive democracy.
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