Editor Speaking: An Interview with Laurence Burgorgue-Larsen editor of Plurality and Diversity in Law: The Human Rights Paradigm

We interviewed Laurence Burgorgue-Larsen on this recently published book. She discusses the meaning of “Plurality” and “Diversity,” and examines how these two legal and political concepts are affected by the burdens of the past: colonialism, war and the traditional attitudes of the countries addressed.

What is the difference between “plurality” and “diversity”? How do these separately impact the legal conception of human rights?

In the book, the term “diversity” refers to the plurality of identities (racial, ethnic, religious, social, sexual, etc.) that individuals and groups both objectively and subjectively identify with. Migration phenomena, affecting all parts of the globe, lead to an increase in diversity within societies and a corresponding demand for the recognition of the specificities of each person and group. The most significant challenge, in terms of human rights, is to combine diversity with collective coexistence, where “living together” is critical.

As for “plurality”, it encompasses the diversity of opinions and ideas in societies. Here, from a human rights point of view, the limitations of majority decisions in a liberal democracy are in question. The debate tends to move away from the discussion of substantive issues: what conditions are necessary to justify interference with individual rights and interests? How can such interference be justified? What types of arguments are valid, and what types of arguments should be disqualified? Today's liberal democracies are at the crossroads of a major challenge: each one, depending on its history, has a singular relationship to the expression of ideas and opinions in the public sphere. However, this historical relationship is increasingly challenged by the presence of people and groups from immigrant backgrounds who, coming from different cultures, do not have the same relationship to freedom of expression in certain areas. The example of religious criticism is a perfect example of this tension.

In what way are these two concepts affected by the constraints of war and colonialism? 

Colonialism and past wars have significant consequences on the functioning of contemporary societies. These two phenomena, which were often historically denied, ignored, or downplayed, pose significant challenges in the present for the harmonious functioning of societies and their ability to address the burdens of the past.

Wars generated by totalitarian regimes have, for the most part, had visible consequences on the functioning of liberal regimes, imposing significant limitations on plurality. This manifests in several ways. At times, this is seen in the presence of clauses that prevent the modification of certain elements of the Constitution, affecting the liberal and democratic order. Additionally, and most importantly, this is through allowing the prohibition of any kind of associations (religious, political) whose purpose is to undermine the foundations of liberalism from within. This past can also have consequences on the choice of the state's structure (unitary or federal) and on the organisation of the coexistence of multiple legal systems (secular and religious) within the same state, as demonstrated by the disintegration of the Ottoman Empire, among other examples.

Colonialism, based on a hierarchical vision among humans built on the denial of equal dignity, continues to generate numerous discriminations in the present, where stereotypes abound. Here, diversity is at the heart of contemporary challenges. Beyond the necessary recognition of structural discriminations against certain demographics, liberal states must take the fight against discrimination seriously. On both these fronts, analyses demonstrate that there are still very serious deficiencies within states, whether they are democratic or not.

How does the protection of the rights of the individual versus the collective influence the liberal foundation of a state? Does one have more weight than the other, and does one need more protection than the other?

In general, when, within the same state, the recognition of the rights of groups coexists with that of the rights of individuals, achieving a balance is very complex. Generally, the rights of certain groups will not be at the centre of democratic functioning. They still, in most states, remain on the periphery.

Are there any significant differences between the European and inter-American human rights systems examined in the book?

The major difference between the European and inter-American systems relating to the protection of human rights concerns the recognition of rights for certain groups. As such, it should be noted that the example of indigenous peoples in Latin America illustrates such a differentiated approach. Beyond this very specific issue, there is a general emphasis on the protection of rights for all types of minorities in Latin America (political, sexual, ethnic), an emphasis that is a matter of principle.

The European system, on the other hand, is characterised by greater discretion, taking into account historical, political, and social factors specific to each state, to strike a balance between individual rights and the public interest, often using the concept of a national margin of appreciation.

Does the continued attachment to traditional and historical values in some states create any issues in the establishment of a liberal state? 

Attachment to certain historical and traditional values has consequences not on the establishment of liberal states, but, rather, their functioning. Formally, states are inclined to declare their commitment to political liberalism; however, practice demonstrates that the faithful adherence to liberal principles fades when—beyond the question of the nature of the state (democratic or not)—historical "traditions" and values are at stake.

One of the emblematic examples highlighted in the book is the case of Japan. Despite the formal recognition of a liberal system, both the treatment of women (who are still heavily discriminated against) and that of specific ethnic groups (whose uniqueness is denied) demonstrate that Japan is far from detaching itself (as the rules and principles of liberal constitutionalism would advocate) from deeply ingrained ancestral customs that are difficult to eradicate.

What, if any, trends exist which are uncovered in the book’s examination of the 23 countries’ human rights systems?

The book reveals the significant challenge faced by coexisting populations of different origins and beliefs, which is compounded by the influence of the past (colonial, authoritarian) on belief systems, values and present-day institutions.

Plurality and Diversity in Law: The Human Rights Paradigm

This book provides an understanding of how States around the world, whether in the Global North or the Global South, deal with and organize the religious, ethnic, cultural and linguistic diversity within them and how, in the same vein, they deal with the plurality of opinions and legal systems.

Laurence Burgorgue-Larsen (ed.)

May 2023
ISBN 9781839703133