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Language Laws and Collective Rights

Published online by Cambridge University Press:  09 June 2015

Nathan Brett
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Extract

This paper focuses on Quebec language legislation which has the effect of prohibiting the use of the use of English on signs. The controversial “Frenchonly” sign law is considered in spelling out an argument for collective rights and assessing some of the obstacles which a collective rights thesis must overcome. No attempt is made in this discussion to resolve the question of the relative weight of the collective and individual rights which come into conflict in this situation. No doubt this latter is itself a difficult task. If the argument of this paper is sound, however, a solution phrased wholly in terms of individual rights and the public good is simpler only because it omits important dimensions of the problem.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 4 , Issue 2: Collective Rights , July 1991 , pp. 347 - 360
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1991

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References

This paper started life as a reply to Michael Hartney’s discussion in “The Concept of a Collective Right” presented at the Canadian Section of the International Society for Philosophy of Law and Social Philosophy (I.V.R.) meetings in Quebec City (1989). Professor Hartney’s thoughtful skepticism about collective rights claims and Michael McDonald’s defenses of these claims (in papers presented to the I.V.R.) have both been very helpful in thinking about these issues. See, e.g., McDonald, M., “Collective Rights and Tyranny,” in LaFrance, G., ed., Pouvoir et Tyrannie (Ottawa: les Press de l‘Universite’ d’Ottawa, 1986) at 121 Google Scholar and “Collective Rights as Basic,” in LaFrance, G., Ethics and Basic Rights, (Ottawa: les Press de l‘Université d’Ottawa, 1989) at 230.Google Scholar

1. The following sections of the Quebec Charter of the French Language. R.S.Q.. c. C–11 (1977)—also denominated Bill 101—are relevant to our discussion:

Preamble: Whereas the French language, the distinctive language of a people that is in the majority French-speaking, is the instrument by which the people has articulated its identity… S.l. French is the official language of Quebec. S. 58. Public signs and posters and commercial advertising shall be solely in the official language. S. 69. Subject to s. 68. only the French version of a firm name may be used in Quebec.

2. Discrimination based on race or national origin, to use the categories of the equality rights provisions of the Canadian Charter of Rights and Freedoms (s. 15) Constitution Act, 1982. The Supreme Court of British Columbia decided a closely related issue in Regina v.Jack and Charlie (1982)139 D.L.R. 3 at 25.

3. See the dissent in Regina v.Jack and Charlie, ibid.

4. Of course, this assumption can be questioned. I return to problem in the final section of this paper.

5. S. 14 of the Canadian Charter recognizes a right to an interpreter.

6. I shall ignore the possible complications of bilingualism in stating the problem, though I do not see any difference in principle between the case in which a single language is favoured and that in which two have official status.

7. It is perhaps with such considerations in mind that the drafters of the equality rights provisions of the Canadian Charter of Rights did not include language as one of the proscribed bases of differentiation in the Equality Rights provisions of s. 15. It is an interesting irony that The Quebec Charter of Human Rights and Freedoms does prohibit discrimination of the basis of language:

S. 10. Every person has the right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin… (italics added).

This was one of the bases on which the Supreme Court ruled against the Quebec sign legislation. (See discussion in Section III below.)

8. There is a growing literature concerning collective or group rights. See, e.g., Kymlicka, W., Liberalism, Community and Culture (Oxford: Clarendon Press, 1989) c. 7–9;Google Scholar Réaume, D., “Individuals, Groups, and Rights to Public Goods,” (1988) 38 U.T.L.J. 1.Google ScholarThe question of collective language rights is briefly addressed in each of these and is the focus of discussion in Green, L., “Are Language Rights Fundamental,” (1987) 25 Osgoode Hall L.J. 639.Google Scholar

9. Supra, note I. Sections 58 and 69 of Bill 101 were struck down by Canada’s Supreme Court (Quebec v. Ford et al (1988) 2 S.C.R. at 712). They were amended (to allow bilingual signs inside premises) and reinstated by the Quebec government’s use of its power (Charter s. 33) to declare a law operative notwithstanding its conflict with the rights of the Charter.

10. This claim ignores some features of the existing climate of opinion and attitude regarding language use. Getting rocks thrown through one’s windows is no one's idea of good business sense.

11. Leslie Green distinguishes between “survival” and “security” as bases for the view that there are basic language rights. (Green, supra, note 8 at 653-60.)

One possible basis for language rights is the interest in survival of language groups over time....

A better way to understand the interest in language is to think of it as a concern for linguistic security; the knowledge that one’s language group may flourish and that one may use the language with dignity.

He argues that one cannot construct a cases for rights from the goal of protecting an endangered linguistic species, and hence that “survival” is not a consideration on which fundamental language rights can be based. My use of ‘French Demise’ should not be interpreted as an endorsement of the abstract goal of ensuring the survival of a language. Viewed from the inside, a threat to the survival of a group's language is a threat to linguistic security of its members.

12. I do not intend to reject the Dworkinian view that individual rights are “trumps” against policies which yield higher utilities, in accepting the constraint of “reasonable limits”. At the same time I do not accept the view that a utilitarian disaster is no case against individual rights. One can accommodate this by conceiving of rights in a way bars the pursuit of social utility up to some threshold.

13. The Canadian judiciary, moreover, seems to be barred by a of variety constraints from factoring such comparative judgments into their decisions (included, e.g., in both the Charter and the Bill of Rights) which rule out discrimination on the basis of national (or “national and ethnic”) origin.

14. I use “external preference” in Dworkin’s sense here to mean a preference about the way in which others lead their lives. I shall focus on language preferences here and ignore the other external preferences concerning life style for simplicity here, though I believe that linguistic preferences are important partly because of their connection with these other cultural differences. See Dworkin, R., Taking Rights Seriously (Cambridge: Harvard University Press, 1977) at 234ff.Google Scholar

15. Raz, J., The Morality of Freedom (Oxford: Oxford University Press, 1986) C.8, S.4.Google Scholar

16. Ibid, at 208.

17. This condition derives from Raz’s generic account of what rights are:

‘X has a right’ if and only if X can have rights, and, other things being equal, an aspect of X’s well-being (his interest) is a sufficient reason for holding some other person(s) to be under a duty. (Supra, note 15 at 166.)

18. Duncan Macintosh has argued in a paper soon to be published that preference change can provide a solution to the prisoner's dilemma. See “Preference’s Progress: Rational Self-Alteration and the Rationality of Morality,” (1990) 29 Dialogue, forthcoming.Google Scholar

19. The state could interfere to exclude me from the use of a light house, could prevent me from acquiring the skills of navigation (or fail to enable my learning them). The lighthouse remains paradigmatically a public good. A set of individual rights—e.g., the right to life—as well as other conditions of feasibility are actually assumed when goods are classed as “public”. The “nonexcludability” criterion for public goods is discussed in Réaume, supra, note 8 at 3–4. The claim that language is a public good is qualified and defended by Green, supra, note 8 at 659–60.

20. I discuss the contrast between an “irrelevant difference” and “protected class” interpretations of anti-discrimination statutes in “Equality Rights in Retirement,” in Poff, D. & Waluchow, W., eds. Business Ethics in Canada (Scarborough: Prentice-Hall, 1987) at 221.Google Scholar

21. I shall give further attention to this third condition in discussing the first of the “caveats” in Section VI, below.

22. It is obvious, I think, that attributing the right of “self-government” directly to individuals will fail to make sense of the way in which this concept is used in political discussion. The right to selfgovernment is typically invoked in situations involving political and social revolution; and the “independence” which is defended in the name of this right is the independence, not of individuals, but of one group of people from another. No individual, not even a leader, can be said to possess the right of self-government. It is collective autonomy rather than individual autonomy which this right to self-government protects.

23. Michael McDonald uses “critical mass” in relation to the problem of language rights in “Collective Rights and Tyranny,” in LaFrance, G., ed., Pouvoir et Tyrannie (Ottawa: les Press de l‘Universite’ d’Ottawa, 1986) at 121 Google Scholar at 121. Réaume utilizes the idea in her discussion of public goods, supra, note 8 at 5. Green (supra, note 8 at 667–68) utilizes the notion of a “threshold” in considering “why the numbers warrant” and in the process gives a justification for the “critical mass” test.

24. See especially Raz’s discussion of constitutional rights, The Morality of Freedom, supra, note 15 at 255–63.

25. Ibid, at 209.

26. What I have in mind here by “only justified on grounds of expediency” can be brought out by using an analogy with fallible court procedures, which in general protect, but may convict, the innocent. Few would deny that injustice is done where the innocent are convicted, even where it was the best we could do. It might be argued that freedom of expression demands the equal protection of all languages; but that practical considerations require an official language (even to protect these rights)

27. In some respects the analogy between languages and rules of the road is misleading. It is possible, I suppose, that drivers within the same territory could learn to alternate between different traffic systems, e.g., driving on the right by day, and on the left at night. But a system of this sort would be highly inefficient. On the other hand, human beings seem to be quite capable of ingesting more than one system of linguistic conventions and learning the contextual cues which demand transitions between these systems. And whereas more than one system of traffic co-ordination could only be a liability, it seems that there are gains (to offset the inefficiencies) of multilingualism. Certainly there is nothing in the concept or the reality of communities which rules this out. A people who have several means of communication certainly have the communication conditions which are necessary for a community to exist. Thus in a multilingual population, it seems, there would only be considerations of efficiency which could serve as a basis for giving any one language dominance over others. But, of course, this is not the situation in which the question of justifying official language dominance actually takes place. What is necessary is that there be at least one language which is widely shared in the population.

28. There is as well, of course, the assumption that culture is something of importance. Kymlicka. supra, note 8, discusses the kind of harm that is involved in the assimilation of one culture by another in c. 7 and 8 of Liberalism, Community and Culture. He is also concerned to distinguish between protecting a culture and protecting a culture from change. (See 166ff.) The first is the social background from within which meaningful choices are possible. Losing this is a significant danger of processes of assimilation. But its preservation is perfectly consistent with the second, with even fairly radical changes of a culture, which are themselves subject to the choices of its members.