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Rights of Exit

Published online by Cambridge University Press:  16 February 2009

Leslie Green
Leslie Green
Affiliation:
York University, Toronto
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Extract

Social groups claim authority to impose restrictions on their members that the state cannot. Churches, ethnic groups, minority nations, universities, social clubs, and families all regulate belief and behavior in ways that would be obviously unjust in the context of a state and its citizens. All religions impose doctrinal requirements; many also enforce sexist practices and customs. Some universities impose stringent speech and conduct codes on their students and faculty. Parochial schools discriminate in their hiring practices. Those who complain about such internal restrictions on the liberties of members might well be told to “love it or leave it.”

Type
Articles
Information
Legal Theory , Volume 4 , Issue 2 , June 1998 , pp. 165 - 185
Copyright
Copyright © Cambridge University Press 1998

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References

1. Rawls, John, A Theory of Justice 212 (1971).Google Scholar

2. Kukathas, Chandran, Are There Any Cultural Rights? in The Rights of Minority Cultures 238Google Scholar (Kymlicka, Will ed., 1995).Google Scholar

3. Id. at 247 (emphasis added).

4. Locke, John, A Letter Concerning Toleration 28Google Scholar (Tully, J.H. ed., 1983).Google Scholar

5. Id.

6. Rawls, John, Political Liberalism 221–22 (1993).Google Scholar

7. Locke, , supra note 4, at 28.Google Scholar

8. Rawls, , supra note 6, at 261.Google Scholar

9. Hirschman, Albert O., Exit, Voice, and Loyalty; Responses to Decline in Firms, Organizations, and States 15–16, 30 (1970).Google Scholar

10. Plato, , Crito, 51dGoogle Scholar in Law and Obedience: the Arguments of Plato's Crito 152Google Scholar (Woozley, A.D. trans., Duckworth 1979).Google Scholar

11. Id. 52a at 153.

12. Locke, , supra note 4, at 28Google Scholar

13. Rawls, , supra note 6.Google Scholar

14. Kukathas misunderstands this point Of course it is true that one may freely assume substantial risks. But the relevant question is whether the risks of exiting social groups are so much less than the risk of leaving one's state as to obviate the need for rights apart from exit. See Kukathas, Chandran, Cultural Rights Again: A Rejoinder to Kymlicka, 20 Political Theory 674–80 (1992).CrossRefGoogle Scholar

15. Sartre, Jean-Paul, Anti-Semite and Jew 69 (Becker, G.J. trans., Schocken Books 1965).Google Scholar

16. Thomas v. Norris [1992] 2 C.N.L.R. 139.Google Scholar

17. Kukathas, , supra note 2, at 238.Google Scholar

18. Id. at 248.

19. Locke, John, Two Treatises of Government II,. ss.80–83Google Scholar (Laslett, P. ed., 1988)Google Scholar. Locke's view of what fair treatment actually amounted to was, however, marred by the sexist assumptions of his time.

20. Kymlicka, Will, Multicultural Citizenship 155–58 (1995).Google Scholar

21. Id. at 157. See also will Kymlicka, , The Rights of Minority Cultures: Reply to kukathas, 20 Political Theory 140–46 (1992).CrossRefGoogle Scholar

22. Kukathas, , supra note 2, at 247.Google Scholar

23. Id. at 249–50. Kukathas also claims that would be bound by liberal prohibitions on “cruel, inhuman or degrading treatment,” though this seems unmotivated in view of his argument strategy.

24. Wisconsin v. Yoder, 406 U.S. 205.Google Scholar

25. Denise Réaume argues that most comprehensive social groups are characterized by a certain degree of vagueness and indeterminacy about what their standards in fact are, and that, this gives space for internal dissent. See Réaume, Denise, Justice Between Cultures: Autonomy and the Protection of Cultural Affiliation 29 B.C. L. Rev 117, 138–39.Google Scholar

26. Locke, , supra note 19, II, s. 121, at 349, emphasis added.Google Scholar

27. Kukathas, , supra note 2, at 239.Google Scholar

28. Those whose consent is, in Locke's terms, tacit are bound to obey the law only as long as their enjoyment of its benefits continues. (Express consenters are “perpetually and indispensably” obliged till the government dissolves.) They may, if they are landowners, take the land with any conditions that the donor assigned to it, but the direct jurisdiction of the government is only over the land, and if they give it up, one “is at liberty to go and incorporate himself into any other Commonwealth, or to agree with others to begin a new one, in vacuis locis. …” Locke, , supra note 19, II, s.121, at 349.Google Scholar

29. Cf. Hofer v. Hofer et al. [1970] 13 D.L.R. (3d) 1Google Scholar. In this case, two Hutterites who were expelled from the colony sued for a share of the communal assets. The Supreme Court of Canada refused their claim, upholding religious autonomy of the group.

30. Locke, , supra note 4, at 30.Google Scholar

31. Id. at 30–31.

32. Id. at 31.

33. Mill, J.S., On Liberty, in Utilitarianism 224Google Scholar (Warnock, M. ed., 1962).Google Scholar

34. Green, Leslie, Internal Minorities and Their RightsGoogle Scholar, in The Rights of Minority Cultures 265–67Google Scholar (Kymlicka, will ed., 1995).Google Scholar

35. Locke, , supra note 4, at 28–29.Google Scholar

36. Réaume, , supra note 25, at 138.Google Scholar

37. Id. at 141. Réaume insists, however, that one who is ultimately unable to persuade the group of her views must finally remain free to exit

38. [1995] 4 C.N.L.R. 121.

39. There was even some evidence that patrilinearity, so far from being an aboriginal custom, was itself a European imposition: It was the Indian Act and not traditional custom that excluded women who marry out from status. The court accepted anthropological testimony to the effect that membership was a good deal more fluid. Id.

40. “Notwithstanding any other provision of the Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equal to male and female Persons.” Constitution Act, 1982 (35)(4).Google Scholar

41. Hirschman, , supra note 9, at 47.Google Scholar

42. Mulgan, Richard, Maori, Pakeha and Democracy 64 (1989)Google Scholar, as cited in Kukathas, , supra note 2, at 249.Google Scholar

43. I would want to distinguish between cultural survival, and cultural security. The latter protects cultures only against unfair pressures to conform to majority practices. See Green, Leslie, Are Language Rights Fundamental? 25 Osgoode Hall L. J. 653–58 (1987).Google Scholar