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Linguistic JusticeInternational Law and Language Policy$

Jacqueline Mowbray

Print publication date: 2012

Print ISBN-13: 9780199646616

Published to Oxford Scholarship Online: January 2013

DOI: 10.1093/acprof:oso/9780199646616.001.0001

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Conclusion

Conclusion

Chapter:
(p.201) Conclusion
Source:
Linguistic Justice
Author(s):

Jacqueline Mowbray

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199646616.003.0007

Abstract and Keywords

A close examination of international law on language policy reveals that the vision of linguistic justice implicit in international law is limited in key ways. While in some respects international law opens up the possibilities for greater justice in relation to language use, in other respects it constrains them. This chapter considers the implications of this finding for international law. In particular, it asks whether it is possible for international law to engage more productively with issues of language. Drawing on Pierre Bourdieu’s work on the nature of the legal field, it argues that it is possible to exploit points of difference within international law in order to open up space for a more comprehensive and inclusive vision of linguistic justice. In reaching this conclusion, the chapter also considers the usefulness of Bourdieu’s methodology for analysing international law.

Keywords:   linguistic justice, international law, language policy, Bourdieu, legal field

At the centre of this book is the concept of linguistic justice and its relationship with international law. In exploring this relationship, I have considered two primary questions. To what sorts of issues does the concept of linguistic justice call attention? And how does the discourse of international law engage with these issues? Following Bourdieu, I have considered these questions not in the abstract, but within the specific context of different domains of language use. By considering issues of language use in the fields of education, culture, the workplace, the state, and public life, I have built up a picture of the kinds of claims which might be associated with linguistic justice, and the role which international law plays in relation to these claims. This analysis reveals that international law both opens up and limits possibilities for greater justice in relation to language use. Different areas of international law provide bases for challenging language policies which cause injustice. Ultimately, however, when compared with the enlarged vision of linguistic justice to which Bourdieu’s work directs us, the vision implicit in international law appears limited in a variety of ways.

Throughout the book I have drawn on Bourdieu’s theoretical analysis, together with literature from a range of academic disciplines, to identify a variety of claims relating to language which raise issues of justice. While these claims are wide-ranging and diverse, it is possible to group them in a general way, such that a number of key themes emerge. The first is that linguistic justice has something to do with the connection between language and identity: language-related claims are often articulated in terms of the threat which language policies pose to the realization and expression of identity. The second is that linguistic justice signals a range of concerns from the perspective of equality. This includes claims regarding specific forms of discrimination on the basis of language, but also general concerns about the way in which language may function as a barrier to accessing opportunities in fields such as education, culture, and work. The way in which language can render particular groups especially vulnerable to harm and exploitation is also of significance from this perspective. The third general theme to emerge from my analysis concerns the cultural significance of language. Various claims to protect language use, and linguistic diversity more generally, are made on the basis that language enriches the cultural experience of everyone. Finally, linguistic justice raises issues of democratic participation and inclusion. In this context, the concept of linguistic (p.202) justice points towards the need for all individuals, regardless of their linguistic capabilities, to exercise control over decisions which affect their lives.

Different areas of international law take account of the concerns about linguistic justice which become apparent from each of these perspectives. The need to protect language as a vehicle for the expression of identity informs the system of minority rights, and also provides the basis for protecting language use through cultural rights and freedom of expression. The principle of equality underpins non-discrimination provisions, but also a range of other rights which protect language use, including minority rights and rights to procedural fairness. International laws on participation in cultural life and the protection of linguistic diversity acknowledge the connection between language and culture, and seek to address injustice associated with language use from this perspective. And while the democratic rights discussed in Chapter 5 may be the most obvious indicator of international law’s engagement with issues of language and participation, rights to education, freedom of expression, participation in cultural life, and minority rights are all relevant in this context. International law does not, therefore, speak with one voice on the issue of language. Different areas of law approach the question of language use from different perspectives, such that the vision of linguistic justice inherent in international law is not unitary but fragmented. As a whole, however, international law engages with the range of concerns highlighted by consideration of the concept of linguistic justice, and so opens up possibilities for greater justice in the linguistic sphere.

In other respects, however, international law constrains efforts to achieve greater justice as between speakers of different languages. When compared with the vision of linguistic justice suggested by Bourdieu’s work, the vision embodied in international law appears limited in a variety of ways. More specifically, applying Bourdieu’s approach highlights six aspects of linguistic justice which are inadequately considered within international law.

First, international law does not pay sufficient attention to questions of context. For Bourdieu, language issues cannot be considered in the abstract, but only through a close analysis of the linguistic habitus of individuals and the way in which they are treated within specific cultural fields. In this way, his work reveals that questions of linguistic justice are ultimately context-dependent. So, for example, in relation to education, whether a particular language policy causes injustice depends on a range of contextual factors, including the status of the language in question, the levels of education at which the policy is implemented, and the interests of the groups concerned. Yet international law leaves little room for considering such matters, and certainly offers no comprehensive vision of linguistic justice which incorporates such considerations. Similarly, whether linguistic diversity is seen to pose an obstacle to democratic debate depends on the forum within which such debate occurs. The use of multiple languages may complicate democratic discussion at the state level; however, if we shift our focus to smaller, local institutions, it may be possible to accommodate both linguistic diversity and the interests of democracy. Yet international law implicitly focuses on democratic participation at state level, and tends not to acknowledge the different (p.203) possibilities for accommodating both linguistic diversity and democracy within other fora. More generally, I have noted throughout the book the importance of remaining sensitive to the broader context of globalization, and the way in which this affects language use. But international law is not well attuned to the way in which, depending on the circumstances, globalization can both threaten and promote linguistic justice.

If international law fails adequately to consider questions of context, it also fails to take sufficient account of complexity and differentiation more generally. Bourdieu’s work specifically highlights complexity and contestation in the social world: the way in which individuals with different habitus struggle for position within social fields. In this way, Bourdieu’s work demonstrates that there is more going on within social fields than is recognized by international law. So while international law conceives of education and the media in monolithic terms, seeking in each case to ensure ‘access’ to these fields, Bourdieu’s analysis reveals inequalities within these fields themselves, thus highlighting more subtle and covert ways in which minority language speakers may be disadvantaged. Similarly, international law tends not to acknowledge the complexities inherent in concepts of identity, culture, and the state. This failure to take sufficient account of complexity, differentiation, and contestation limits international law’s contribution to linguistic justice in at least two ways. First, it obscures the structures, relationships, and dynamics within fields which disadvantage particular linguistic groups, such that these frequently remain unchallenged. Secondly, it precludes a more nuanced and realistic assessment of what is at stake in, and possibilities for resolving, disputes about language.

The third limitation inherent in international law’s approach to linguistic justice is a tendency not to account for processes of change which affect the context and content of language issues. Social fields are not fixed or static entities, but are in a constant state of flux. The background against which language issues arise and assume significance is constantly changing. Languages themselves, and the nature of people’s interests in them, also vary over time: the linguistic habitus may change in response to external demands or altered perceptions. While the importance of processes of change to questions of language use was brought into particular focus in the chapter on culture, the significance of change has been a constant theme throughout this book. Yet international law accounts for processes of change rather imperfectly. For example, international law treats identity and culture as having a fixed, stable content, capable of legal protection. As a result, international law not only fails to grasp the true nature of identity- and culture-related interests in language, but may also contribute to checking natural processes of change. More generally, we can see within international law an inclination to ‘fix’ linguistic arrangements, to offer a uniform, ‘once and for all’ solution to language disputes. This is evident, in particular, in international law’s reluctance to reconsider linguistic arrangements in light of changing circumstances, as in the Belgian Linguistics 1 (p.204) and Mathieu-Mohin 2 cases. At the same time, international law fails to acknowledge its own role in relation to processes of change which affect language use. While international law shapes processes of globalization and migration, in ways which both threaten and promote linguistic justice, international legal analyses of language take these phenomena for granted, as developments to which international law must respond, rather than processes for which international law itself is in part responsible.

Fourthly, international law does not attend fully to the systematic nature of the disadvantage particular linguistic groups may face. Linguistic disadvantage often intersects with other forms of vulnerability and exclusion. Migrant workers are vulnerable not only because they lack knowledge of the dominant language, but also because they are socially isolated, lack support, and are unaware of their rights. The life chances of minority children may be diminished not only by a lack of education in their own language, but also by other forms of discrimination and social exclusion. In Bourdieu’s terms, there are ‘homologies’ between fields, such that the distribution of capital in one field tends to reflect the distribution of capital in another. A lack of linguistic capital can therefore amplify the effects of other forms of social disadvantage and vice versa. International law, however, generally treats instances and forms of discrimination in isolation from one another, thus obscuring the structural nature of the disadvantage suffered by minority language speakers. In the work context, for example, international law only partially addresses the range of injustices suffered by minority language speakers in relation to language use in the workplace. And most international bodies and instruments take a narrow approach to the concept of discrimination, focusing on whether, in an individual case, a speaker of one language is unjustifiably treated differently from another. In this way, international law assumes a general condition of equality, from which there are occasional departures, rather than considering the systematic disadvantage particular linguistic groups may face. And while international law prohibits discrimination in respect of access to education, culture, and participation in public life, for example, it focuses on addressing direct discrimination, rather than the more subtle or indirect ways in which language policies may prevent minorities from participating equally in these fields.

The fifth aspect of linguistic justice which Bourdieu’s work highlights as inadequately considered within international law is the politics of language. The political nature of social practice is a central preoccupation for Bourdieu, whose work can be seen as a sustained effort to uncover the structures and effects of power concealed in the everyday. In particular, Bourdieu identifies the political nature of the processes through which certain languages, and the identities and cultures associated with them, are normalized, to the advantage of dominant groups and the detriment of others. These processes tend to be overlooked in international legal discussion of language issues. Thus international law generally ignores the constructed nature of the state and the status of different languages within it, such that it takes the (p.205) privileged position of the official language for granted, rather than as a matter for investigation. In a similar way, international law tends not to appreciate the political dimensions of identity and culture. By taking these concepts as ‘given’, rather than as subjects of inquiry, international legal discourse obscures their character as domains marked by asymmetries of power, through which norms emerge from struggle. Consequently, by framing language issues in terms of the protection of identity and culture, international law not only neglects the political nature of language disputes but may itself function to depoliticize questions of language use. This closes down consideration of the wider political implications of language policy, and narrows the scope for international law to contribute to linguistic justice.

Finally, international law’s vision of linguistic justice is limited in that it tends to accept, rather than challenge, key assumptions regarding language use. Bourdieu’s work foregrounds the role which such assumptions, or doxa, play in maintaining the linguistic status quo, together with injustices inherent in it. In this way, Bourdieu’s methodology allows us to see how international law takes for granted, and so entrenches, ideas about language use which marginalize linguistic minorities. In considering rights to democratic participation, for example, international bodies seem to accept that there is a tension between democracy and linguistic diversity, an idea which justifies limiting the number of languages used in the public sphere, to the detriment of minority language speakers. Further, international law generally conceives of democracy in narrow terms, such that it does not create opportunities for doxa to be challenged through democratic processes. More generally, I have noted throughout the book how debatable assumptions about the ‘impracticality’ of using multiple languages, or of using a different set of languages from that currently used, are embedded in the international legal framework. So too are ideas about the ‘necessity’ and ‘neutrality’ of language requirements, which conceal the way in which such requirements can function as a covert form of racial or national discrimination. In this way, international law itself may be complicit in entrenching the doxic status of ideas which perpetuate injustice in the linguistic sphere.

Ultimately, then, when considered against the background of Bourdieu’s enlarged conception of linguistic justice, it becomes apparent that international law’s vision of this concept is a limited one. In particular, international law tends to simplify and narrow the scope for analysis of language issues, which prevents appreciation of the true complexity, and different dimensions, of language disputes. In contrast, Bourdieu’s analysis enriches our understanding of language issues, directing our attention to a matrix of relevant matters and unearthing the web of complex and subtle ways in which linguistic minorities suffer injustice. In this way, Bourdieu’s work both highlights aspects of linguistic justice which are inadequately considered within international law, and offers a methodology for realizing a more expansive vision of justice in relation to language use.

This is at once a conclusion and a starting point for further inquiry. In particular, my analysis thus far suggests two further questions which might fruitfully be considered. First, what does our discussion to this point suggest about the usefulness of Bourdieu’s methodology for analysing international law more generally? In (p.206) other words, how might Bourdieu’s conceptual framework and general analytical moves help us to understand other areas of international law in new ways? And secondly, what does this suggest about the possibilities for transforming international law, such that it contributes more effectively to linguistic justice? To answer these questions, let us return one more time to Bourdieu’s work, and now consider his analysis of the juridical field itself.

Bourdieu and the Juridical Field

In his article, The Force of Law: Toward a Sociology of the Juridical Field,3 Bourdieu analyses the way in which the law, together with its institutions, practitioners, procedures, and modes of analysis, functions as a field. He demonstrates how this field has its own structure, its own particular forms of capital, and its own values and discourses, which become inscribed in the legal habitus of individuals. According to Bourdieu, the ‘social practices of the law’ result from the interaction between the structure of the field and the ‘internal logic of juridical functioning’, which shapes the legal habitus.4 In exploring the juridical field, and in particular the nature of this ‘internal logic of juridical functioning’, Bourdieu makes two key points about the way in which the legal field operates. These are by no means unique insights into the operation of the legal field. However, Bourdieu’s discussion is useful in that it gives emphasis and focus to ideas which are familiar from critical literature on law in general and international law in particular. And it connects these ideas with Bourdieu’s broader analysis and conceptual framework.

The first point Bourdieu makes about the operation of the legal field is that it tends towards universalization. In other words, the operation of the law is premised on the idea of a coherent, universally applicable body of rules, which can be impartially applied in individual cases.5 Bourdieu identifies several features of the juridical field which support this tendency: ‘the need to come to a decision… [which is] relatively “black or white”’;6 the fact that claims must fall within an established procedural category in order to be raised within the legal system;7 and the explicit requirement for consistency imposed by the doctrine of precedent.8 In this way, Bourdieu highlights the fact that the law values categorization, certainty, and consistency. He also suggests that legal systems have limited capacity to take account of context, complexity, and change. This is because, in seeking to universalize, legal analysis tends not to pay sufficient attention to differentiation and particularity. The focus is on universal rules which can be applied consistently, (p.207) rather than tailoring differentiated solutions to meet the circumstances of individual cases.9

Secondly, according to Bourdieu, the legal field tends to neutralize the stakes in social conflict. The process of formulating an issue as a legal one is a process of ‘transformation of irreconcilable conflicts of personal interest into rule-bound exchanges of rational arguments between equal individuals’.10 In this way, the juridical field ‘operates like a neutral space that neutralizes the stakes in any conflict’.11 Within the legal field, social conflicts are played out through rational argument between professional representatives. This rational argument is conducted through ‘passive and impersonal’12 legal language, which abstracts and distances the legal issues from their factual bases. And it is conducted by lawyers whose professional status derives from their claims to neutrality and impartiality, a fact which is ‘constantly recalled and reinforced by a peer group quick to condemn and censure those who get too openly involved with financial dealings or political questions’.13 As a result, the process of formulating social issues in legal terms tends to ‘edit out’ the context, background, and political aspects of conflicts, reformulating the relevant issues in terms of legal principles. Resolving conflict is thus no longer about reconciling competing interests, no longer a question of the fair distribution of resources, but rather a question of producing a judgment ‘based upon rigorous deduction from a body of internally coherent rules’.14 Of course, Bourdieu points out, this is never truly the case. While the legal field claims to be autonomous and disinterested, legal decisions inevitably require choices to be made. Elasticity in the law, contrasting methods of interpretation of legal texts, and inconsistent precedents all offer scope for different decision-makers to reach different legal conclusions.15 Yet the law conceals this political dimension of its work through its insistence on the ‘rhetoric of autonomy, neutrality, and universality’.16

This analysis of the juridical field suggests that the limitations in international law’s approach to questions of language use, which this book has highlighted, are not specific to this particular area of international law. Rather, they are inherent in the structure of the legal field itself. The legal field tends towards universalization, such that the law generally has difficulty accounting for context, complexity, and change. At the same time, legal rhetoric of universality and neutrality tends to narrow the scope of legal inquiry, to preclude consideration of background factors such as the systematic disadvantage suffered by particular groups and individuals. Similarly, in seeking to neutralize the stakes in social conflict, the law tends to ignore the political dimensions of legal disputes, together with the broader political implications of legal decisions. And the rhetoric of autonomy and neutrality hides the political dimensions and implications of the law itself, such as the way in which the law accepts, and so entrenches, dominant assumptions or doxa.

(p.208) If these limitations are not restricted to international law on language policy, but belong with the legal field generally, then this suggests that the usefulness of Bourdieu’s analysis will likewise not be restricted to this context. Rather, Bourdieu’s methodology, which specifically highlights complexity, contestation, and the way in which power relations are embedded in the obvious and everyday, has the potential to open up our understanding of all areas of law. Thus on the question of whether Bourdieu’s conceptual framework might be useful for analysing international law generally, we can conclude that Bourdieu’s work does indeed offer the potential to open up new perspectives on different areas of international legal activity. Of course, this conclusion assumes that the structure and ‘internal logic’ of the international legal field reflects that of the legal field described by Bourdieu. To some extent, we may wish to question this. As a system, international law differs from domestic law in many ways, and it is certainly not so rigorously bound by form and procedural categories as the domestic legal systems on which Bourdieu appears to base his analysis. Nonetheless, we can recognize that the logic which dominates international law remains an essentially legal one, such that the international juridical field displays the same trends towards universality and neutrality, the same emphasis on consistency and categorization, the same effort to distance ‘law’ from ‘politics’, as domestic legal systems. In fact, international law may be more susceptible than domestic law to Bourdieu’s kind of analysis, given that it tends to operate in more contested terrain, and to address issues with more obvious political implications, than domestic legal systems. In any event, we can safely conclude that there is considerable scope for Bourdieu’s scholarship and methodology to enrich our understanding of the operation of international law. In this way, Bourdieu’s work may be useful in prompting a reconsideration of both the limits and the possibilities of different areas of international law.

But what does Bourdieu’s work suggest about the possibilities for transforming international law to take account of these insights? A recurrent criticism of Bourdieu has been that his work does little to highlight the processes of social transformation through which it is possible to achieve emancipatory change. Rancière, for example, has criticized Bourdieu’s approach as overly deterministic, arguing that Bourdieu sustains inequality by taking it as the starting point of his analysis.17 In a similar vein, de Certeau has criticized the habitus as allowing for ‘no choice among several possibilities’,18 while Butler has argued that Bourdieu fails to account for the transformative possibilities of discourse.19 For critics such as these, while Bourdieu’s methodology is useful in revealing injustice in the social world, it is less useful in identifying how to overcome it.

(p.209) Bourdieu himself has at times expressed doubts about this consequence of his work.20 Yet ultimately, Bourdieu’s analysis implies the continual possibility of change. By demonstrating that fields are not monolithic but in a constant state of flux, Bourdieu highlights the potential for social transformation that is ever-present within social fields. And by drawing our attention to injustice and inequality within these fields, Bourdieu’s work provides us with the starting point for achieving such reform.

In relation to the juridical field, in particular, Bourdieu’s analysis implies that the potential for change is always present within the law. Bourdieu demonstrates that the juridical field is a site of differentiation and contestation,21 within which different players occupy different positions, and seek to interpret and apply the law in different ways:

The practical meaning of the law is really only determined in the confrontation between different bodies (e.g. judges, lawyers, solicitors) moved by divergent specific interests. Those bodies are themselves in turn divided into different groups, moved by divergent (indeed, sometimes hostile) interests.22

Such hostility ‘is at the origin of a permanent symbolic struggle’23 in which ‘control of the legal text is the prize’.24 The scope of this struggle is not limited to the meaning or content of the law, but extends to contestation over the very nature of law itself. While there are those who argue that law, as a system of social regulation, should be largely autonomous and self-referential, others argue that law should take greater account of social realities.25 And the political dimensions of legal activity are ever-present (if concealed) within the legal field, presenting an ongoing internal challenge to the law’s claims to neutrality and disinterestedness. This suggests that it is possible to use voices of dissent and difference which already exist within the field to open up avenues for social transformation. By drawing our attention to conflict and differentiation within the legal field, Bourdieu’s work thus seems pregnant with the possibility of change.

In the context of international law and language policy, then, Bourdieu’s work seems to constitute an invitation to move beyond the narrow and limited vision of linguistic justice adopted in international law. It evokes the possibility of continually exploiting points of difference within international law in order to open up space for a more comprehensive, more inclusive, more ambitious vision of linguistic justice. In this way, Bourdieu suggests how, as international lawyers, we might take up the challenge, implicit in his work, of contributing to the struggle for (p.210) emancipatory change. And his methodology offers us a toolbox of concepts and ideas for use in the ‘never-ending effort to make social relations less arbitrary, institutions less unjust, distribution of resources and options less imbalanced, recognition less scarce’.26

Notes:

(1) Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (No 2) (Apps 1474/62, 1677/62, 1691/62, 1769/63, 1994/63, and 2126/64) (1968) 1 EHRR 252. See discussion in Chapter 1.

(2) Mathieu-Mohin and Clerfayt v Belgium (App 9267/81) (1988) 10 EHRR 1. See discussion in Chapter 5.

(3) Pierre Bourdieu, ‘The Force of Law: Toward a Sociology of the Juridical Field’ (1987) 38 Hastings Law Journal 814.

(4) Bourdieu, ‘The Force of Law’ (n 3) 816.

(5) Bourdieu, ‘The Force of Law’ (n 3) 820.

(6) Bourdieu, ‘The Force of Law’ (n 3) 832.

(7) Bourdieu, ‘The Force of Law’ (n 3) 832.

(8) Bourdieu, ‘The Force of Law’ (n 3) 832.

(9) Bourdieu, ‘The Force of Law’ (n 3) 820.

(10) Bourdieu, ‘The Force of Law’ (n 3) 830.

(11) Bourdieu, ‘The Force of Law’ (n 3) 830.

(12) Bourdieu, ‘The Force of Law’ (n 3) 820.

(13) Bourdieu, ‘The Force of Law’ (n 3) 830.

(14) Bourdieu, ‘The Force of Law’ (n 3) 820.

(15) Bourdieu, ‘The Force of Law’ (n 3) 826–7.

(16) Bourdieu, ‘The Force of Law’ (n 3) 820.

(17) See, eg, Jacques Rancière, The Ignorant Schoolmaster: Five Lessons in Intellectual Emancipation (Kristin Ross tr, Stanford University Press 1991).

(18) Michel de Certeau, The Practice of Everyday Life (University of California Press 1984) 56.

(19) Judith Butler, ‘Performativity’s Social Magic’ in Richard Shusterman (ed), Bourdieu: A Critical Reader (Blackwell 1999).

(20) See Pierre Bourdieu and Terry Eagleton, ‘Doxa and Common Life: An Interview’ in Slavoj Žižek (ed), Mapping Ideology (Verso 1994), especially at 268–70.

(21) Bourdieu, ‘The Force of Law’ (n 3) 817.

(22) Bourdieu, ‘The Force of Law’ (n 3) 821.

(23) Bourdieu, ‘The Force of Law’ (n 3) 821.

(24) Bourdieu, ‘The Force of Law’ (n 3) 818.

(25) Bourdieu, ‘The Force of Law’ (n 3) 851–2.

(26) Loïc Wacquant, ‘Pointers on Pierre Bourdieu and Democratic Politics’ in Loïc Wacquant (ed), Pierre Bourdieu and Democratic Politics (Polity 2005) 21.