Dorota Gozdecka

From multiculturalism to post-multiculturalism: Trends and paradoxes

In recent years, multiculturalism has been declared a failure both in Europe and the Anglophone West. This diagnosis went hand in hand with an excessive focus on gendered cultural practices in culturally diverse societies, such as forced marriages or ‘honour killings’; the raise of anti-immigration political movements and the adoption of stricter legal rules in the areas of immigration and citizenship. This article aims to capture the legal, social and political responses to ‘failed’ multiculturalism under the banner of post-multiculturalism. In doing so, it identifies the major shifts that characterises post-multiculturalism and discusses their implications particularly for the citizens of Europe and various ‘others’. A close analysis of the recent shifts in the areas of rights, migration law and policy debates in various culturally diverse societies reveal that post-multiculturalism reinforces rather than counteracts the problematic features of multiculturalism. Drawing on the insights suggested by the literature on neo-liberal governmentality, the article points out the paradoxes of post-multiculturalism and their implications for culturally different Others.

Identity, subjectivity and the access to the community of rights

Human rights and human rights discourse, the dominant legal axioms of our time, have been frequently involved in diverse discussions on identity, inclusion and recognition (Benhabib, 2004; Habermas, 2000; Kymlicka, 1995; Young, 2002). Despite their exponential growth and implication in a range of legal strivings related to identity and recognition, rights have also been criticised for monopolising and exercising power, including cultural power (Douzinas, 2007, 2013; Kennedy, 2011; Zizek, 2005). As the critique illustrated, the emancipating potential of human rights and human rights discourse has been frequently curtailed in favour of mapping out increasingly rigid categories of identity and authenticity and leaving those requiring recognition outside the scope of protection (Simmons, 2011). Contemporary discussions on the accommodation of cultural diversity and rights of migrants in the majority of Western countries have evidenced that rights are not a one-size-fitsall solution for the complex issues related to the dilemmas of growing mobility and diversity. Quite to the contrary, human rights, like any other branch of law, have proven susceptible to the exercise of power through the process of constructing crucial terms relating to their application. While constructing these terms, human rights law constantly produces subjectivities regulating and controlling diverse dimensions of human life. Human rights law, just as any other phenomenon of every day life, is a form of power which makes individuals subjects through processes of categorising, marking and attaching an identity (Foucault, 1982, p. 781). Through this process, human rights law imposes a form of truth which an individual ‘must recognize and which others have to recognize in him’ (Foucault, 1982, p. 781). These created subjectivities feature prominently in matters relating to identity and emancipation and result in imposing legal expectations that eventually become internalised by those that the law constructs as subjects. A notable construct imposing subjectivities in human rights law and human rights discourse pertaining to identity is the notion of community. The importance of community for identity, recognition and rights (Gewirth, 1998) has been debated in a variety of contexts including multicultural coexistence (Taylor & Gutmann, 1994), national community and migration (Anderson, 2006; Honig, 2009) and regulation of issues of moral sensitivity (Haste, 1996). Similarly to scientific debates, recent discussions on French or British identity have prominently featured notions of

Caught between Different Legal Pluralisms: Women Who Wear Islamic Dress as the Religious ‘Other’ in European Rights Discourses

Legal pluralism is a phenomenon defined differently by scholars researching European law and scholars researching issues concerning cultural and religious accommodation. Whereas European law scholars focus on possible theoretical tools for conflict resolution between intersecting European legal systems, scholars focusing on multiculturalism argue that cultural and religious legal pluralism conveys a dynamic relationship between official and unofficial law drawn out by migration and issues of accommodating a primarily Muslim diaspora in Europe. Yet, seemingly differently defined, these pluralisms have an equally important impact on the understanding of fundamental human rights in Europe. They both influence national law and shape the boundaries of rights, such as freedom of religion. Building upon established notions of legal pluralism, the paper provides a critical analysis of the application of human rights standards in European normative orders and argues that the rights of the religious ‘other’ are caught in an interplay of various types and forms of legal pluralism(s) in which issues of inclusion often remain secondary. It focuses upon the key example of women who wear a hijab (headscarf) or a jilbab (a long coat like garment which covers the body except the hands and face) and who were the central focus of European Court of Human Rights cases such as Dahab v Switzerland and Sęhin v Turkey, and of domestic cases, for example, R (on the application of Begum) v Headteacher and Governors of Denbigh High School. The paper re-orders and re-constructs certain forms of legal pluralism and also focuses on the relationships between them.

Unintended Consequences: The impact of migration law and policy

This book arose from an inaugural conference on Migration Law and Policy at the ANU College of Law. The conference brought together academics and practitioners from a diverse range of disciplines and practice. The book is based on a selection of the papers and presentations given during that conference. Each explores the unexpected, unwanted and sometimes tragic outcomes of migration law and policy, identifying ambiguities, uncertainties, and omissions affecting both temporary and permanent migrants. Together, the papers present a myriad of perspectives, providing a sense of urgency that focuses on the immediate and political consequences of an Australian migration milieu created without due consideration and exposing the daily reality under the migration program for individuals and for society as a whole.

A community of paradigm subjects? Rights as corrective tools in culturally contested claims of recognition in Europe

This article analyses the role of rights in human rights jurisprudence dealing with recognition of identities and cultural diversity in Europe. Using examples of selected case law of the European Court of Human Rights, it discusses the understanding of rights and their impact on the notions of community and recognition. It critically evaluates the recourse to the notions of a closed, established community and the defence of the established status quo in culturally contested conflicts. It analyses claims articulated by those framed as standing outside the narrow confines of such a cultural community. By reference to critical perspectives, the article illustrates how rights operate with categories of paradigm and foreign subjects and regulate respective entitlements of these subjects to enjoy rights. It demonstrates how these categories impact upon the notion of a community and how the narrowing of its boundaries limits the possibilities of belonging of foreign subjects. The article argues that these categories embedded in rights regimes lead to a mutation of rights from tools of inclusion to tools of correction. In their corrective function rights rather than serving as tools of ensuring belonging are used for maintenance of established identities and cultural regimes of power. In the final section by reference to the latest judgments of the same Court expanding rather than narrowing the understanding of a community, the article examines whether rights can reach beyond these subjectivities and offer possibilities of renegotiating the established regimes of cultural power.

Rights, religious pluralism and the recognition of difference : off the scales of justice

Introduction Part I: From Non-Confrontation to Obsession - Religious Pluralism as an Emerging Legal Principle in the European Legal Sphere 1. Council of Europe Bodies and Soft-Law Interpretations of Religious Pluralism 2. The European Court of Human Rights and and Judicial Interpretation of the Principle of Religious Pluralism 3. The Relevance of Religious Pluralism in the EU legal order 4. Relevance of pluralism in European domestic regimes Part II: Three Myths of Inclusion 5. On the Way to Elysium - Defining Religion and Registration of New Religious Communities 6. Regulation of Religious Symbols - a European Pandoras Jar 7. Religions and Reproductive Rights - Freedom Changed to Stone? Part III: Religious Pluralism, Human Rights and the Dissident 8. The Hollow Paradigms of Contemporary Debates on Law and Religion and the Failed Potential of Religious Pluralism 9. Repairing Utopia of Rights - Sources of Reconstruction 10. Human rights and the dissident 11. Rights Beyond Structure? - Towards Otherwise than Becoming Conclusions