Overruling Murphy's Law on the Free Choice of Identity and the Racial-Ethnic-National Terminology-Triad: Notes on How the Legal and Political Conceptualization of Minority Communities and Membership Boundaries is Induced by the Groups’ Claims

In: Kristin Henrard (ed.): The Interrelation between the Right to Identity of Minorities and their Socio-economic Participation, Leiden; Boston: Brill, 2013. pp. 115-155.

22 Pages Posted: 30 Dec 2013

See all articles by Andras Pap

Andras Pap

Hungarian Academy of Sciences Centre for Social Sciences Institute for Legal Studies; Central European University Nationalism Studies Program; Faculty of Humanities, Department for Communications and Media Studies

Abstract

Consider the following paradox: while sociologists, anthropologists, constitutional scholars, philosophers and policy makers may endlessly dwell on the difficulty of benchmarking or defining membership criteria for minorities, and – complicated by powerful data protection regulations – a number of international human rights commitments are interpreted in a way which suggest that they recognize the free choice of identity in both the positive and the negative sense, in the real world there are no definitional or identification problems for those who engage in discriminatory behaviour. When it comes to the ill-treatment of members of various minority groups, no difficulties in definitions arise for the discriminating party. In fact, sometimes conceptual ambiguities may only even worsen protections provided for the victimized group. The chapter essay investigates the constitutional dilemma that characterizes all minority protection mechanisms, be they remedial in nature, recognizing collective ethno-cultural claims, preferential treatment, or protections offered from racially motivated violence or discrimination: they need to institutionalize some kind of a definition for the targeted groups, and/or membership requirements within the community despite concerns over data protection or historically embedded moral concerns. The failure to do so seriously impedes the prospects for efficient legal protection, as shown by the documented practice of "ethnic cheating" or "ethno-corruption" and the reluctance to apply antidiscrimination and hate crime laws due to data protection misgivings in Eastern Europe. Also, people (the legislator, the majority, the taxpayers, and the international community) have an arguable right to properly identify the beneficiaries of the affirmative action and minority rights regimes, if not for other reasons, then due to the budgetary burdens of these policies and the responsibility for a sustainable and transparent policy-making and enforcement. The first chapter analyzes the habitually used definitions and conceptualizations for minority groups and membership criteria. The second part turns to unfold the paradox of free choice of identity. It highlights the theoretical contradictions and practical malfunctions within the reading that recognizes the free choice of identity as a principle of international minority rights protection law. It is argued that the legally undefined (thus, practically unrestrained) right to minority identification may in practice actually lead to inherent inefficiencies in rights protection.

Suggested Citation

Pap, Andras and Pap, Andras, Overruling Murphy's Law on the Free Choice of Identity and the Racial-Ethnic-National Terminology-Triad: Notes on How the Legal and Political Conceptualization of Minority Communities and Membership Boundaries is Induced by the Groups’ Claims. In: Kristin Henrard (ed.): The Interrelation between the Right to Identity of Minorities and their Socio-economic Participation, Leiden; Boston: Brill, 2013. pp. 115-155., Available at SSRN: https://ssrn.com/abstract=2372940

Andras Pap (Contact Author)

Hungarian Academy of Sciences Centre for Social Sciences Institute for Legal Studies ( email )

Országház u. 30.
Budapest, H-1014
Hungary

Central European University Nationalism Studies Program ( email )

Nador utca 9
Budapest, H-1051
Hungary

Faculty of Humanities, Department for Communications and Media Studies ( email )

Budapest Múzeum krt. 6-8.
Budapest, -- H1088
Hungary

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