The Puzzle of Interlocking Power Hierarchies: Sharing the Pieces of Jurisdictional Authority

In recent years, political and legal theorists have argued that liberal democracies should accommodate distinctive religious and cultural groups within their borders by exempting them from certain laws or by awarding them a degree of autonomous jurisdiction over controversial legal domains, primarily in education and family law. Such policies present a problem, however, when they systematically allow the maltreatment of individuals within the accommodated minority groups - an impact in certain cases so severe that it nullifies these individuals' rights as citizens. I term this phenomenon 'the paradox of multicultural vulnerability.' Resolution of this paradox requires a certain amount of distance from the prevailing, yet misleading, 'your culture or your rights' dichotomy. While there is no magic formula that can neatly resolve the paradox as a whole, we can attempt at least to rethink some legal/institutional designs that strive for the reduction of injustice between groups, together with the enhancement of justice within them. This article describes the critique of traditional citizenship models elaborated by such theorists as Will Kymlicka, Charles Taylor and Iris Young. It then distinguishes and challenges the two extant approaches to resolving the paradox of multicultural vulnerability. These approaches, which can be labeled the 'unavoidable cost' response and the 're-universalized citizenship' response, appear to be diametrically opposed. My analysis illustrates, however, that these two competing approaches function as mirror images of one another, since both use the same basic logic. A new and more viable approach to respecting cultural differences must reject such simplistic models. The final section of the article develops the contours of a new approach, joint governance, which advocates the expansion of the jurisdictional authority of religious and cultural minorities, while at the same time creating a dynamic incentive structure that encourages accommodated communities to rework discriminatory and subordinating practices internally. It utilizes a rich set of examples from contemporary American and Canadian jurisprudence to outline and assess four alternative legal/institutional schemes which can ensure a more level playing field - not only for non-dominant minority cultures and society at large, but also for individuals within accommodated communities - by seeking creative new ways to divide and share jurisdictional authority in our increasingly diverse societies.

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