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On the Intrinsic Value of Arabic in Israel—Challenging Kymlicka on Language Rights

Published online by Cambridge University Press:  20 July 2015

Meital Pinto
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In the postcolonial era, we have witnessed waves of mass immigration. Consequently, many states are no longer associated with just one or two national languages. Newly formed immigrant minorities raise demands for language rights, alongside national minorities, which raise similar demands.Such a complex situation exists, for example, in Canada, where only French and English are declared official languages although there are other languages, such as Chinese, which are spoken by large communities of people. My paper addresses the general question of which linguistic minorities are most entitled to comprehensive language rights. Will Kymlicka distinguishes between national minorities, which he regards as deserving of comprehensive language rights, and immigrant minorities which are not. Many scholars challenge Kymlicka’s distinction. However, none of them have suggested alternative criteria for distinguishing minority languages that are entitled to protection from minority languages that are less entitled to protection. In my paper, I suggest such a criterion. My alternative criterion is based on the intrinsic interest people have in protecting their own language as the marker of their cultural identity, thus, comprehensive language rights are to be accorded to linguistic minorities that possess the strongest intrinsic interest in the protection of their language as their marker of cultural identity. I apply my criterion to the Israeli case, in which there are two dominant linguistic minorities: the Arab national minority and the Jewish Russian immigrant minority. Relying on general criticism of Kymlicka’s distinction, I argue that this distinction is not applicable to the Israeli linguistic case. Applying my alternative criterion to the Israeli case, I argue that Israeli Arabs have a stronger interest in Arabic than the Russian Jewish minority has in Russian because Arabic constitutes Israeli Arabs’ exclusive marker of identity.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 20 , Issue 1 , January 2007 , pp. 143 - 172
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Copyright © Canadian Journal of Law and Jurisprudence 2007

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References

I am greatly indebted to Lorraine Weinrib and Denise Réaume for supervising my research and writing. Their comments have greatly sharpened my arguments. I also wish to thank Jillian Boyd, Jarmila Lajcakova and especially Rueban Balasubramaniam and Sujit Choudhry for their insightful comments on earlier drafts of this paper. Finally and most importantly, I would like to thank my partner, Boaz Miller for helping me work my arguments, and for his insightful comments.

1. For a definition of language rights see Michael MacMillan, C., The Practice of Language Rights in Canada (Toronto, ON: University of Toronto Press, 1998) at 11 CrossRefGoogle Scholar; Royal Commission on Bilingualism and Biculturalism, Report, vol. 1 (Ottawa, ON: Queen’s Printer, 1968) at 41 Google Scholar

2. Réaume, Denise G., “The Constitutional Protection of Language: Survival or Security?” in Schneiderman, David, ed., Language and the State: The Law and Politics of Identity (Cowansville, Qc: Éditions Yvon Blais, 1991) 37 at 46-47Google Scholar [Réaume, “The Constitutional Protection of Language”].

3. The roots of the familiar distinction between negative and positive rights are found in Isaiah Berlin’s well-known distinction between negative and positive freedom ( Berlin, Isaiah, “Two Concepts of Liberty” in Four Essays on Liberty (London: Oxford University Press, 1969) 118 at 121-72Google Scholar). Simply put, the term ‘negative rights’ refers to rights that create the duty of the state not to interfere with the freedom of the citizen to do whatever he or she desires. The term ‘positive rights’ refers to rights that impose positive obligations on the state, i.e., actions that the state is obliged to take if it is to take these rights seriously. However, the distinction between negative and positive rights has been rightly criticized as elusive. Some scholars argue that all rights, even the most allegedly negative rights, impose certain obligations on the state (See Macklem, Patrick, “Aboriginal Rights and State Obligations” (1997) 36 Alberta L. Rev. 97 at 100-02Google Scholar). Therefore, I prefer to use Patrick Macklem’s distinction between ‘rights with positive dimensions’ and ‘rights with negative dimensions’ and to describe language rights as rights with more positive than negative dimensions.

4. Canada’s public policy has always distinguished between linguistic minorities by promoting mul-ticulturalism on the one hand and bilingualism on the other hand. The prominent bases for preferring French and English over other languages in Canada are the historical reality of these two founding nations and their numerical and geographical concentration. However, there is a constant debate over protecting only these two linguistic communities (see Meyerhoff, Terrence “Notes and Comment: Multiculturalism and Language Rights in Canada: Problems and Prospects for Equality and Unity” (1994) 9 Am. U.J. Int’l L. & Pol’y 913 Google Scholar; Coulombe, Pierre A., “Citizenship and Official Bilingualism in Canada” in Kymlicka, Will & Norman, Wayne, eds., Citizenship in Diverse Societies (Oxford: Oxford University Press, 2000) 273 CrossRefGoogle Scholar). This debate reached its climax in the public deliberation over the Meech Lake (1987) and Charlottetown (1992) Accords. The bilingual character of Canada and the proposed ‘distinct society clause’ gave the French minority a preferable status over other minorities. Ethnic minorities and Aboriginal Peoples rejected the accords, inter alia, because they did not extend language rights to ethnic minorities, but instead, they maintained the disparity between minority groups (Meyerhoff, at 993-95). For other reasons for rejecting the accords see Baken, Joel & Smith, Michael, “Rights, Nationalism, and Social Movements in Canadian Constitutional Politics” in Schneiderman, David & Sutherland, Kate, eds., Charting the Consequences: The Impact of Charter Rights on Canadian Law and Politics (Toronto: University of Toronto Press, 1997) 218 Google Scholar

5. H.C. 4112/99 Adalah et al. v. The Municipality of Tel-Aviv-Jafa et al., 56(5) P.D. 393 at 441-42 [Adalah].

6. See Patten, Alan, “Who Should Have Official Language Rights?” in Braën, André, Foucher, Pierre & Le Bouthillier, Yves, eds., Languages, Constitutionalism and Minorities (Markham, ON: LexisNexis Butterworths, 2006) 235 at 236Google Scholar. In contrast to Canada and Israel, India does not give any superior legal status to the Urdu language over other minority languages that are recognized as ‘scheduled languages’, i.e. official languages which are not transnational languages, and are not equal in status to the transnational Hindu and English. This is even though Urdu is used by the largest minority in India—the Muslim (see Harel-Shalev, Ayelet, “The Status of Minority Languages in Deeply Divided Societies: Urdu in India and Arabic in Israel—A Comparative Perspective” (2006) 21(2) Israel Studies Forum 28 at 34-38)Google Scholar.

7. I will elaborate on Kymlicka’s core thesis in section VI of this paper.

8. Kymlicka, Will, Multicultural Citizenship (Oxford: Clarendon Press, 1995) at 27 Google Scholar [Kymlicka, Multicultural Citizenship].

9. Ibid. at 32.

10. Kymlicka discusses self-government and representation rights under the same title of ‘group-differentiated rights’ (ibid. at 109). He sees group-differentiated rights as instruments that alleviate the vulnerability of the minority to economic and political decisions made by the majority (ibid.), for they allow the availability of meaningful options by providing access for members of minority groups to their societal cultures. Kymlicka defines group-differentiated rights as “external protections [that] ensure that members of the minority have the same opportunity to live and work in their own culture as members of the majority” (ibid.).

11. Ibid. at 30.

12. Ibid.

13. Ibid. at 31.

14. Ibid. at 79.

15. Ibid. at 113.

16. Ibid. at 114.

17. I borrowed the terms ‘hierarchical distinction’, ‘sociological argument’, and ‘consent argument’ from Choudhry, Sujit (Choudhry, Sujit, “National Minorities and Ethnic Immigrants: Liberalism’s Political Sociology” (2002) 10(1) J. Pol. Phil. 54 at 60-61, 65)Google Scholar.

18. Kymlicka, Multicultural Citizenship, supra note 8 at 79.

19. Choudhry refers to these two differences as the difference of scope and the difference of institutional embodiment (Choudhry, supra note 17 at 73).

20. Kymlicka, Multicultural Citizenship, supra note 8 at 77.

21. Ibid. at 80.

22. Ibid. at 94.

23. Ibid. at 95.

24. Ibid. at 95-96.

25. Supra note 5. Due to the similarities between the two distinctions, some scholars actually attribute the distinction that was made by Barak C.J. to the one that was made by Kymlicka (see Saban, Ilan & Amara, Muhammad, “The Status of Arabic in Israel: Reflections on the Power of Law to Produce Social Change” (2002) 36(2) Isr. L. Rev. 5. at 33)CrossRefGoogle Scholar.

26. Early Israeli Supreme Court decisions on the issue of language rights addressed only specific complaints of Israeli Arabs who were injured due to lack of publication of public notices in Arabic (for analysis of these Supreme Court decisions see Tabory, Mala, “Language Rights in Israel” (1981) 11 Israel Y. B. on Human Rights 272 Google Scholar; Merin, Yuval, “The Case against Official Monolingualism: The Idiosyncrasies of Minority Language Rights in Israel and the United States” (1999) 6 ILSA J. Int’l & Comp. Law 1 at 15-16Google Scholar; Saban & Amara, supra note 25 at 26). The Supreme Court decision in the Re’em case (C.A. 105/92 Re’em Engineers and Contractors Ltd. v. Municipality of Upper Nazareth, P.D. 47(5) 189) addressed the general question of the right of private companies to publish advertisements only in Arabic. However, the Re’em decision was based on the general right of all linguistic minorities to ‘speak’ their language in the private sphere, rather than on the Arab minority selective right to do so. For a profound discussion of Re’em see Merin, ibid. at 7, 39-41; Saban & Amara, ibid. at 24, 28.

27. The term ‘municipal signs’ refers to all kinds of signs that are published by the municipality: warning and guidance signs on roads and sidewalks and signs that mark street names.

28. Drayton (1934) 3 Laws of Palestine 2569, 2588 [Article 82]. Article 82 is the statute that declares Hebrew and Arabic to be the official languages of Israel. It was incorporated into Israeli legislation from British Mandatory Legislation. (The accurate history of art. 82 can be found in the following articles: Tabory, supra note 26; Merin, supra note 26; Saban & Amara, supra note 25). Judicial decisions that deal with the issue of the Arabic language in Israel are rare. Although all of them discuss the use of Arabic, most of them are not based on the legal status of Arabic as an official language under art. 82.

29. Justice Cheshin’s minority opinion is beyond the scope of this paper. In short, Cheshin J. claims that the court should not acknowledge language rights that protect the Arabic language because the question whether to recognize them or not is a political question. In Cheshin J.’s view, it is improper for the court to create a new right that strengthens the cultural and national identity of Israeli Arabs independently. As long as the ideological aspirations of the petitioners are not translated into statute by the Knesset, the court is unable to assist them, and it would be improper for the court to decide an issue that does not lie within its domain (Adalah, supra note 5 at 456-60). In addition, Cheshin J. ruled that the petition lacks a minimal factual foundation because the petitioners did not show that Arab residents were indeed injured as a result of the lack of street signs in Arabic, and that the routine daily life of these citizens requires the addition of Arabic to the signs (441-46). Justice Cheshin’s latter view is not consistent with the intrinsic interest that underpins language rights (as I will analyze in section VI of this paper).

30. Adalah, supra note 5 at 411.

31. You may ask why the legal status of Arabic is defined by an old British mandatory rule and why the democratic machinery in Israel failed to comprehensively protect the Arabic language. The answer is complex and therefore beyond the scope of this paper. In short, on the one hand most Knesset members do not want to abolish the official status of Arabic which has mainly a symbolic importance. On the other hand, comprehensive support for the Arabic language is viewed by the majority of Knesset members as derogating from the status of Hebrew, thus jeopardizing the Jewish national character of Israel. The argument is that supporting bilingualism means supporting bi-nationalism (see discussion in Saban & Amara, supra note 25 at 37).

32. Or the “functional value of a language” in Barak C.J.’s term (Adalah, supra note 5 at 412-13).

33. As Barak C.J. puts it: “Municipal signs are designated to ‘talk’ to the residences of the city and therefore should be published in a language that they understand” (ibid. at 412).

34. Ibid.

35. The translation of this paragraph is taken from Saban & Amara, supra note 25 at 32 (emphasis added).

36. The fact that the decision was limited to street signs in mixed cities was emphasized in the decision of Justice Maza who refused the request of the respondents to a further hearing (see H.C.F.H. 7260/02 The Municipality of Ramleh v. Adalah et al. [2003] (The decision was not published)).

37. More precisely, in my view, the distinction that was drawn by Barak C.J. is only partly similar to Kymlicka’s distinction. The part describing the Arab minority as existing in Israel for a long time characterized it as a national minority in Kymlicka’s terms. The other considerations relate more to the interest of maintaining a peaceful society in Israel and correspond to the correlating instrumental interest that will be discussed in section VI of this paper.

38. See Saban & Amara, supra note 25 at 33; Jabareen, Hassan, “The Future of Arab Citizens in Israel: Jewish-Zionist in a Place with Palestinian Memory” (2001) Mishpat Umimshal (Law and Government) 53 (Hebrew)Google Scholar.

39. See Choudhry, supra note 17 at 74; Benhabib, Seyla, “The Liberal Imagination and the Four Dogmas of Multiculturalism” (1999) 12(2) Yale J. Criticism 401 at 407)CrossRefGoogle Scholar.

40. Young, Iris Marion, “A Multicultural Continuum: A Critique of Will Kymlicka’s Ethnic-Nation Dichotomy” (1997) 4(1) Constellations 48 at 50CrossRefGoogle Scholar.

41. Ibid. at 52.

42. In light of this, Joseph Carens suggests that the term ‘recognition rights’ be used instead of ‘polyethnic rights’, because it draws attention to what it is about the rights, as opposed to who exercises them, that distinguishes them from self-government rights, while leaving open the empirical and normative questions about who does and who ought to exercise such rights ( Carens, Joseph H., “Liberalism and Culture” (1997) 4(1) Constellations 35 at 36-37CrossRefGoogle Scholar).

43. Choudhry, supra note 17 at 63.

44. Ibid.

45. Ibid. at 64-65.

46. z Rubio-Marin, Ruth, “Exploring the Boundaries of Language Rights: Insiders, Newcomers, and Natives” in Macedo, Stephen & Buchanan, Allen, eds., Secession and Self-Determination (New York: New York University Press, 2003) 136 at 139Google Scholar.

42. Adrian Favell argues that while relying empirically on the situation in his homeland Canada, Kymlicka develops a general philosophical framework which is supposed to have a universal normative applicability. Favell, Adrian, “Applied Political Philosophy at the Rubicon: Will Kymlicka’s Multicultural Citizenship ” (1998) 1(2) Ethical Theory and Moral Practice 255 at 268-72CrossRefGoogle Scholar. Favell uses two main examples to illustrate his point. In France, cultural minorities are not recognized as such in the public political discourse. Problems regarding minorities’ rights are addressed in purely individualistic terms as problems concerning cultural pluralism and French citizenship (258-59). In Britain, some ethnic groups do enjoy certain rights, but the rationales for granting them—keeping the public order and maintaining a peaceful society— are very different from Kymlicka’s ones, which are culture as a context of choice for the individual (261-62).

48. Geertz, Clifford, Available Light: Anthropological Reflections on Philosophical Topics (Princeton: Princeton University Press, 2000) at 218–19 Google Scholar [Geertz, Available Light].

49. Ibid. at 250.

50. Ibid. at 226.

51. Choudhry, supra note 17 at 69.

52. Ibid.

53. See Dominitz, Yehuda, “Israel’s Immigration Policy and the Dropout Phenomenon” in Lewin-Epstein, Noah, Ro’I, Yaacov and Ritterband, Paul, eds., Russian Jews on Three Continents: Migration and Resettlement (London: Frank Cass, 1997) 113 Google Scholar.

54. Ibid. at 114. The Jews that emigrated from Europe are called ‘Ashkenazi’ Jews and the ones who came from Arab states are called ‘Sephardic’ Jews.

55. Ibid. at 114.

56. Ibid. at 115.

57. Ibid. at 118.

58. Spolsky, Bernard & Shohamy, Elana, The Languages of Israel: Policy, Ideology and Practice (Clevedon, UK/Buffalo/Toronto/Sydney: Multilingual Matters, 1999) at 235 Google Scholar [Spolsky & Shohamy].

59. The Sephardic Jewish immigrants were very traditional and close to Judaism as opposed to Russian immigrants that tend to be more secular ( Ben-Rafael, Eliezer, Olshtain, Elite & Geijst, Idit, “Identity and Language: The Social Insertion of Soviet Jews in Israel” in Lewin-Epstein, Noah et al., eds., Russian Jews on Three Continents: Migration and Resettlement (London: Frank Cass, 1997) 364 at 384-85Google Scholar [Ben-Rafael et al., “Identity and Language”]).

60. Ibid.

61. As observed by Spolsky and Shohamy, the central idea of Zionist ideology was the creation of the identity for the ‘new’ Israeli Jew who speaks Hebrew as opposed to the ‘old’ Jew who spoke the languages of the Diaspora (Spolsky & Shohamy, supra note 58 at 71).

62. Ibid. at 236.

63. Ben-Rafael et al., “Identity and Language”, supra note 59 at 382-83.

64. Unlike the earlier immigrants from the area, who came to Israel before its establishment (during the periods which are called first, second and third ‘Aliya’) and were ideological Zionists.

65. Siegel, Dina, The Great Immigration: Russian Jews in Israel (New York: Berghahn Books, 1998) at 20 Google Scholar.

66. Ben-Rafael et al., “Identity and Language”, supra note 59 at 382.

67. Dominitz mentions the ‘dropout’ Phenomenon which describes Jewish Russian immigrants who left the Soviet Union with an Israeli entry visa and while on their way to Israel dropped out and stayed at a transit station (Vienna in Austria or Italy) waiting for immigration to another country (Dominitz, supra note 53 at 118). Siegel mentions that “[f]or many Soviet Jews Vienna was a symbol of the free choice of destination” (Siegel, supra note 65 at 15). However, Dominitz indicates that this free choice no longer existed during the mass immigration of the 1990s because the travel to Israel was done mostly by direct flights without using transit centres in other countries (Dominitz, supra note 53 at 124).

68. Siegel, ibid. at 14.

69. Shepherd indicates that the Jewish Russians in Israel today did not leave Russia primarily because of anti-Semitism. Therefore, they can revisit Russia and find intellectual stimulus in the culture existing in Russia today ( Shepherd, Naomi The Russians in Israel: The Ordeal of Freedom (London: Simon & Schuster, 1993) at 184 Google Scholar).

70. In these towns Russian is the normal language heard on the streets, to the extent it can be wrongly assumed that Russian is the second official language of Israel and not Arabic (ibid. at 181).

71. Spolsky & Shohamy, supra note 58 at 236. For a discussion of Israeli ruling which addresses claims for the protection of Russian see Pinto, Meital, “Language Rights, Immigration and Minorities in Israel” (2006) 10(1) Mishpat Umimshal (Law and Government) 223 at 236Google Scholar (Hebrew).

72. Ben-Rafael et al., “Identity and Language”, supra note 59 at 383.

73. Ibid. at 371.

74. As observed by Spolsky and Shohamy, in 1989 there was one daily newspaper published in Russian in Israel. By 1996, there were five local daily newspapers, several weeklies, and more than a dozen magazines in Russian (Spolsky & Shohamy, supra note 58 at 237).

75. Shepherd, supra note 68 at 181-86.

76. Ben-Rafael et al., “Identity and Language”, supra note 59 at 374.

77. Spolsky & Shohamy, supra note 58 at 237.

78. Ibid.

79. Ibid.

80. Spolsky, Bernard, Language Policy (Cambridge: Cambridge University Press, 2004) at 52 Google Scholar.

81. Ben-Rafael et al., “Identity and Language”, supra note 59 at 376.

82. Spolsky & Shohamy, supra note 58 at 234. For Israeli legal decisions that emphasise the problematic superior status of Arabic over Russian given the equal numbers of Russian and Arabic speakers in Israel see Meital Pinto, supra note 71 at 236 (Hebrew).

83. Kymlicka, Multicultural Citizenship, supra note 8 at 96.

84. As Kymlicka indicated himself, there is no magical formula that will cover all national and immigrant minorities (Kymlicka, Multicultural Citizenship, supra note 8 at 101). Elsewhere, Kymlicka and Raphael Cohen-Almagor wrote that the distinction between immigrant groups and national minorities remains remarkably unexplored at the level of normative liberal democratic theory. As a result there is no “adequate theory of the moral justification for, or the moral limitations on ethnocultural rights” ( Kymlicka, Will & Cohen-Almagor, Raphael, “Democracy and Multiculturalism” in Cohen-Almagor, Raphael, ed., Challenges to Democracy: Essays In Honour and Memory of Isaiah Berlin (Aldershot: Dartmouth, 2000) 89 at 111Google Scholar).

85. Kymlicka argues that modifications towards immigrant minorities involve “reforming the public institutions of the dominant culture so as to provide some recognition or accommodation of their heritage. But it has not involved the establishment of distinct and institutionally complete social cultures alongside the anglophone society” (Kymlicka, Multicultural Citizenship, supra note 8 at 78).

86. Ben-Rafael et al., “Identity and Language”, supra note 59 at 369.

87. The attitude of the Israeli government towards the Russian language is depicted by scholars as a pluralistic attitude as opposed to the anti-pluralistic attitude that characterized the attitude of the government towards the cultures and the languages of the Sephardic Jews who immigrated to Israel in the 1950s and 1960s (ibid. at 366 and 369).

88. Raz, Joseph, The Morality of Freedom (Oxford: Clarendon Press, 1986) at 166 Google Scholar.

89. I will not discuss the aesthetic or the beneficial values of language as a human enterprise for human culture in general. Under these accounts, each particular language is compared to a rare piece of art ( Patten, Alan & Kymlicka, Will, “Introduction: Language Rights and Political Theory: Context, Issues, and Approaches”, in Kymlicka, Will & Patten, Alan, eds., Language Rights and Political Theory (Oxford: Oxford University Press, 2003) 1 at 44Google Scholar [Patten & Kymlicka]). For a discussion of this approach, see Marshall, David F. & Gonzalez, Roseann D., “Why We Should Be Concerned about Language Rights: Language Rights as Human Rights from an Ecological Perspective” in Schneiderman, David, ed., Language and the State: The Law and Politics of Identity (Cowansville, Qc: Éditions Yvon Blais, 1991) 289 at 296-302Google Scholar; Kibbee, Douglas A., “Language Policy and Linguistic Theory”, in Maurais, Jacques & Morris, Michael A., eds., Languages in a Globalising World (Cambridge: Cambridge University Press, 2003) 47 at 51-55CrossRefGoogle Scholar; Hale, Ken, “On Endangered Languages and the Importance of Linguistic Diversity” in Grenoble, Lenore A. & Whaley, Lindsay J., eds., Endangered Languages: Language Loss and Community Response (Cambridge: Cambridge University Press, 1998) at 192 CrossRefGoogle Scholar; Boran, Idil, “Global Linguistic Diversity, Public Goods, and the Principle of Fairness” in Kymlicka, Will & Patten, Alan, eds., Language Rights and Political Theory (Oxford: Oxford University Press, 2003) 189 Google Scholar. Réaume points out that although these interests may be very important, they emphasize the value of a particular language to human kind in general, and not its value to its particular speakers. Therefore, since they do not point out specific people who hold interests in a specific language they are too general to justify language rights (Réaume, “The Constitutional Protection of Language”, supra note 2 at 41). Following Réaume, I will leave aside those interests that pertain to language in general and confine my discussion in this paper to the interests of people in practicing their own particular language.

90. Green, Leslie, “Are Language Rights Fundamental?” (1987) 25 Osgoode Hall L.J. 639 at 658-659Google Scholar [Green, “Are Language Rights Fundamental?”]; Réaume, “The Constitutional Protection of Language”, supra note 2 at 45. Learning a new language is always and invariably a costly matter. It is quite an onerous task, almost like learning a new trade or profession ( Lagerspetz, Eerik, “On Language Rights” (1998) 1 Ethical Theory and Moral Practice 181 at 184CrossRefGoogle Scholar). For an in-depth analysis of Israeli legal decisions prior to the Adalah case that rely solely on the instrumental interest in protecting Arabic due to Israeli Arabs’ difficulties in using Hebrew in various communication activities see Meital Pinto, supra note 71 at 243-45 (Hebrew).

91. Kymlicka, Multicultural Citizenship, supra note 8 at 82-83, 105. According to Geertz, culture is a system of symbols of human life and for it. It is of life in the sense that it is used by human beings to represent their lives in a meaningful way, and for life in the sense that it offers effective models for action (Geertz stresses that this framework is one’s particular culture and not culture in general). The second sense is similar to Kymlicka’s idea of culture as a framework which enables meaningful choice ( Geertz, Clifford, The Interpretation of Cultures: Selected Essays (New York: Basic Books, 1973) at 93 Google Scholar).

92. Kymlicka’s argument refers to what he labels ‘societal culture’. A societal culture is a culture that involves “a common language and societal institutions, rather than common religious beliefs, family customs, or personal lifestyles” (Kymlicka, Multicultural Citizenship, ibid. at 76). Because under Kymlicka’s account a culture is attached to a particular language, Kymlicka’s argument regarding the importance of one’s own culture can be rephrased with regard to one’s own language as his or her context of choice.

93. A similar argument is that the protection of a specific cultural membership is necessary for the fulfillment of individual autonomy (see Tamir, Yael, Liberal Nationalism (Princeton: Princeton University Press, 1993) at 36 Google Scholar.

94. Réaume, Denise G., “Official-Language Rights: Intrinsic Value and the Protection of Difference” in Kymlicka, Will & Norman, Wayne, eds., Citizenship in Diverse Societies (Oxford: Oxford University Press, 2000) 245 at 247CrossRefGoogle Scholar [Réaume, “Intrinsic Value and the Protection of Difference”].

95. Raz refers to ‘goods that have intrinsic value’ instead of referring to ‘intrinsic interests’. However, intrinsic good is almost a synonym for intrinsic interest because goods that have an intrinsic value for us are goods that we have an intrinsic interest in protecting (supra note 88 at 199).

96. Ibid. at 200-01.

97. Drawing on Raz’s definition of intrinsic constituent good, Andrei Marmor distinguishes between two sub-categories of constituent intrinsic goods. The first sub-category consists of concrete constituent intrinsic goods that instantiate general intrinsic goods that are valuable in themselves. Marmor provides the example of friendship: “If friendship is of intrinsic value, then my friendship with Sarah is a constituent good in this sense”. The second sub-category consists of constituent intrinsic goods which are essential ingredients of intrinsic goods that are valuable in themselves. In my view, only the latter is the type of constituent intrinsic good which accurately characterises the intrinsic nature of the protection of a specific language. According to Marmor, only the second sub-category of intrinsic constituent goods can be distinguished from instrumental goods by the ‘irreplaceably test’. That is to say, constituent goods that instantiate intrinsic goods have an intrinsic value although they can be replaced by other goods without reducing the value of the intrinsic goods they instantiate ( Marmor, Andrei, “The Intrinsic Value of Economic Equality” in Meyer, Lukas H., Paulson, Stanley L. & Pogge, Thomas W., eds., Rights, Culture, and the Law: Themes from the Legal and Political Philosophy of Joseph Raz (Oxford: Oxford University Press, 2003) 127 at 138CrossRefGoogle Scholar). In my view, goods that instantiate intrinsic goods (Marmor’s first sub-category) should not be considered as having constituent intrinsic value, but rather as intrinsic goods that are valuable in themselves. As I see it, when people ascribe intrinsic value to their particular friends, they do not necessarily ascribe intrinsic value to friendship as such. Similarly, parents ascribe intrinsic value to their own children, but not necessarily to having children in general. In the case of language, it seems that both speaking a language in general and speaking one’s mother tongue have an independently intrinsic value for him or her.

98. According to Jacob Levy, providing minorities with language rights contributes to the formation of cross-culture frameworks that can mitigate the conflicts that result from interactions between ethnic or cultural minority groups and majority groups in multilingual societies ( Levy, Jacob T., The Multiculturalism of Fear (Oxford: Oxford University Press, 2000) at 40–41 CrossRefGoogle Scholar). Similarly, James Tully argues that recognizing minority cultures may strengthen minorities’ allegiance to, sense of belonging to and identification with their state ( Tully, James, Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995) at 197–198 CrossRefGoogle Scholar). Joseph Magnet raises a very similar argument, according to which the main justification for language rights is that they manage conflicts between Canada’s linguistic communities ( Magnet, Joseph Eliot, Official Languages of Canada: Perspectives from Law, Policy and the Future (Cowansville, Qc: Éditions Yvon Blais, 1995) at 83, 250Google Scholar).

99. Other means can mitigate harsh conflicts between minority groups and majority groups such as temporary economic support or affirmative action, which seek to put the minority and the majority at the same level.

100. Kymlicka himself argued that the process of transferring from one culture to another is a “costly process” (Kymlicka, Multicultural Citizenship, supra note 91 at 85-86; see also Kymlicka, Will, Contemporary Political Philosophy: An Introduction, 2nd ed. (Oxford: Oxford University Press, 2002) at 340 Google Scholar).

101. The way to eliminate the costs of transferring from one language to another is to put efforts into the process of integrating people who speak a particular language with people who speak a different language. If this process is successful and the people who previously spoke only their first language become fluent in a different language, we are left with no reason to protect the original language of these people. However, such a system of integration may not necessarily exist. Therefore, in some cases, instrumental reasons may be strong enough to justify language rights. It would be wrong to dismiss instrumental interests altogether, as they may prove valuable in some cases. However, in other cases, the instrumental interests are not strong enough to justify language rights.

102. Réaume, “Intrinsic Value and the Protection of Difference”, supra note 94 at 251. See also Green, “Are Language Rights Fundamental?”, supra note 90 at 659; Réaume, “The Constitutional Protection of Language”, supra note 2 at 45; Réaume, Denise G., “Beyond Personality: The Territorial and Personal Principles of Language Policy Reconsidered” in Kymlicka, Will & Patten, Alan, eds., Language Rights and Political Theory (Oxford: Oxford University Press, 2003) 271 at 283Google Scholar.

103. See Fishman, Joshua A., Reversing Language Shift: Theoretical and Empirical Foundations of Assistance to Threatened Languages (Clevedon: Multilingual Matters, 1991) at 21 Google Scholar.

104. This understanding of the connection between language and culture is supported by the work of the American anthropologist Benjamin Whorf, who argues that the perception of the world changes from one language to another. What is referred to as Whorf’s ‘weak hypothesis’ emphasizes the role of a particular language as reflecting the concepts of the culture it is associated with, rather than determining these concepts. You may know Whorf’s hypothesis from his famous example that Eskimo language has many words for snow, because the discrimination between different kinds of snow plays a significant role in Eskimo culture. For a detailed account of Whorf’s argument see Whorf, Benjamin Lee, Language, Thought and Reality: Selected Writings of Benjamin Lee Whorf ed. by Carroll, John B. (Cambridge, MA: M.I.T. Press, 1964)Google Scholar. Since my normative argument is based on Whorf’s hypothesis, it is useful to discuss its status in the different disciplines. In political and legal theory, Whorf’s hypothesis is regarded as a strong argument for justifying language rights. (See the discussion about Whorf’s hypothesis in the context of the connection between language and cultural identity in Bell, Daniel, Communitarianism and Its Critics (Oxford: Clarendon Press, 1993) at 158–65 Google Scholar). Albert Chen also refers to Whorf as a normative source for justifying language rights. Chen compares Whorf’s view to the view of Gadamer, who phrases a similar idea that every language is a world view, shaped by the historical tradition embodied in that language. Charles Taylor views language as a basis which makes different social lives possible. Accordingly, the role of a social scientist, such as a political philosopher, is to give meaningful interpretations of these social realities ( Taylor, Charles, “Interpretation and the Sciences of Man” in Taylor, Charles, Philosophy and the Human Sciences: Philosophical Papers 2 (Cambridge: Cambridge University Press, 1985) 15 at 32-40CrossRefGoogle Scholar). In anthropology, the status of Whorf’s hypothesis is pretty well established and it is also associated with the work of anthropologists Edward Sapir and Franz Boas. There are specific anthropological studies that point at a similar conclusion to Whorf’s ‘weak hypothesis’. For instance, Lutz studies the Ifaluk tribe in Micronesia, and concludes that there are emotions, which are experienced by the Ifaluk and are denoted by words that are not translatable to other languages due to their special cultural context ( Lutz, Catherine A., Unnatural Emotions: Everyday Sentiments on a Micronesian Atoll & Their Challenge to Western Theory (Chicago, IL: University of Chicago Press, 1988)Google Scholar). Geertz describes a similar notion with regard to Javanese culture and emotions relating to mourning (Geertz, The Interpretation of Cultures, supra note 91 at 153). However, there is an anthropological outlook which contends that languages differ from each other in forms and structures but not in the ideas they express (see Ben-Rafael, Eliezer, Language, Identity, and Social Division: The Case of Israel (Oxford: Clarendon Press, 1994) at 8 Google Scholar). In analytic philosophy, a thorough philosophical investigation of the ability of different languages to offer different representations of the world is undertaken by Quine in his discussion of radical translation, which is similar to Whorf’s hypothesis ( Quine, Willard Van Orman, World and Object (Cambridge, MA: M.I.T. Press, 1965) at 51–57 Google Scholar). In linguistics, the status of Whorf’s hypothesis is complex. In recent years, Noam Chomsky’s theory of a universal grammar, which is common to all languages, has gained dominance. Chomsky’s theory stands in contradiction to Whorf’s trend of highlighting the particular characteristics of every language. In addition, although there is an overall consensus among linguists on Whorf’s general claim about the connection between language and consciousness, there is disagreement about the validity of Whorf’s empirical findings, on which he based his claims (for a summary of the major positions in this debate see Fletcher, George, “The Case for Linguistic Self-Defense” in McKim, Robert & McMahan, Jeff, eds., The Morality of Nationalism (Oxford: Oxford University Press, 1997) 324 at 328Google Scholar).

105. Other phrases in Hebrew such as “kit bag question” are taken from the Israeli army experience and are a part of the Hebrew language. Everyone in Israel knows that a “kit bag question” is a question which should not be asked because it necessarily leads to bad consequences for the one who raises it. (In Israeli military training every soldier has a personal kit bag. One of the training disciplines is running from one place to another in a short period of time. The phrase relates to the situation where a soldier is ordered to run and asks the commander: “with the kit bag”? The only possible answer is: “yes, with the kit bag” and a kit bag is usually very heavy…).

106. This fact may sometimes have serious implications. For example, there are complex interactions such as legal interaction, which often involve cultural concepts. Based on the American case of People v. Kimura, (People v. Fumiko Kimura, No. A-091133 (L.A. City Super. Ct. filed Apr. 24, 1985). This case involved a Japanese woman in Los Angeles who tried to commit parent-child suicide after abuse by her husband. Deborah Woo indicates that there are Japanese words such as ‘Oyaku-shinju’ (parent-child suicide), which are very difficult to translate into English and English words such as ‘insanity’ which are very difficult to translate into Japanese because of their specific cultural context ( Woo, Deborah, “The People v. Fumiko Kimura: But Which People?” (1989) 17 Int’l J. Soc. L. 403 at 407-13Google Scholar). For examples of difficulties in translation in Israeli courts see Braverman, Irus, “The Place of Translation in Jerusalem’s Criminal Trial Court” Buff. Crim. L. Rev. [forthcoming in 2007]Google Scholar. Richard Hyland indicates that every law is embedded in a particular cultural tradition. Thus, no particular legal system is universal for it cannot overcome the particularity of the language in which it is formulated ( Hyland, Richard “Babel: A She’ur” (1990) 11 Cardozo L. Rev. 1585 at 1597Google Scholar). According to Hyland the features of a culture’s language and its legal system tend to mirror each other (ibid. at 1603-08).

107. May, Stephen, “Uncommon Languages: The Challenges and Possibilities of Minority Language Rights” (2000) 21(5) J. Multilingual and Multicultural Development 366 at 374CrossRefGoogle Scholar.

108. For example, prayers in the Jewish religion and other religious texts, such as the Haggadah (tales for Passover night) are written in Hebrew and publicly read in ceremonies and rituals. Secular Jews consider these texts as part of their culture as well. In fact, almost all the cultural creation in Israel is done in Hebrew: popular music, academic and popular literature, movies, and plays. The verbal components of a culture, which are expressed in a specific language, embody unique characteristics of a culture that will be lost if expressed by other languages (see Dorian, Nancy C., “Choices and Values in Language Shift and Its Study” (1994) 110 Int’l. J. Soc. Lang. 113 at 115Google Scholar).

109. Réaume, “Intrinsic Value and the Protection of Difference”, supra note 94 at 251; May, supra note 107 at 374. For an in-depth analysis of Israeli legal decisions that implicitly recognise the three aspects of the intrinsic interest in protecting Arabic see Meital Pinto, supra note 71 at 255-57 (Hebrew).

110. This means that if there are unlimited resources, in my view there is no reason for Israel not to support the Russian language in an equal manner to the support it gives for the Arabic language.

111. See Raz, supra note 88 at 166.

112. Raz, Joseph, “On the Nature of Rights” in Winston, Morton E., ed., The Philosophy of Human Rights (Belmont, CA: Wadsworth, 1989) 44 at 55Google Scholar.

113. Ibid. at 48.

114. Ibid. at 48-49.

115. Ibid. at 57.

116. Gans, Chaim, The Limits of Nationalism (Cambridge: Cambridge University Press, 2003) at 42.CrossRefGoogle Scholar Gans supports his argument with the example of the right to private property. If this right is to be justified by a freedom-based interest, it is hard to resolve issues concerning its concrete regulation. This is because a person may claim a lot of claims to property that will enhance her freedom. The freedom-based interest does not help to decide which of these claims is justified (ibid. at 41).

117. This kind of immigration is not included in Kymlicka’s perception of immigrant minorities. Recent work of Kymlicka shows that he focuses on the North American and British context of immigration ( Kymlicka, Will, “Immigration, Citizenship, Multiculturalism: Exploring the Links” in Spencer, Sarah, ed., The Politics of Migration: Managing Opportunity, Conflict and Change (Oxford: Blackwell, 2003) 195 Google Scholar). This context is very different from Jewish immigration to Israel. As Ben-Rafael and others argue, the Jewish immigration to Israel represents a special kind of immigrant population that most literature on immigration in the world ignores. This is an immigration of ‘returning diasporas’ (Ben-Rafael et al., “Identity and Language”, supra note 59 at 364). For a normative discussion of this kind of immigration see Gans, ibid. at ch. 5.

118. Anderson, Benedict, Imagined Communities: Reflections on the Origin and Spread of Nationalism, 2nd ed. (London/New York: Verso, 1991)Google Scholar.

119. Ibid. at 6.

120. See Yerushalmi, Yosef Hayim, Zakhor: Jewish History and Jewish Memory (Seattle: University of Washington Press, 1982)Google Scholar.

121. Miller, David, On Nationality (Oxford: Clarendon Press, 1995) at 127 Google Scholar, in Gans, supra note 116 at 132.

122. Ibid.

123. Yerushalmi, supra note 120.

124. Ibid. at 99-101.