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«Martin Frank University of Bremen Institut for Intercultural and International Studies (InIIS) Paper prepared for the ECPR-workshop on Equality of ...»

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While the distribution of (public) jobs and positions is a clear case of application, a general restriction to these cases is at odds with the above framework. If scarcity can create competitiveness in distribution, this is valid for other goods as well. But the main reason for the applicability (and necessity) of the equal opportunity principle, as described above, is the kind of selection procedure. If a competitive selection procedure is involved in the distribution, then the equal opportunity principle has a clear applicability, as long as the involved parties care about it´s fairness. Therefore, the proposed point of view is different.

If jobs were the only relevant goods, groups would play only an indirect role insofar as the equal opportunity principle would primarily be related to individual members of such groups applying for jobs. The main interest of this paper, however, is whether collectives as such can be potential entities of distributive claims and how the equal opportunity principle can be applied to them. If posts and positions are interpreted differently as to include tasks and The necessary prerequisits for application for positions, educational and other, are normally also included.

ascribed competences (as in the above example), then collectives or their representatives have to be admitted as relevant subjects.

While the distribution of goods and burdens in the public sphere are clear candidates for the equal opportunity principle, at least in liberal democratic societies, the non-applicability to the non-public sphere, however defined, is not clear and established. Furthermore, the question of determination of the boundary is still open and not fixed. The EU-directives against discrimination want to include indirect and some non-state discriminations. Relevant subjects are non-state employers, landladies, shopkeepers, restaurant owners etc., which are prohibited to discriminate against clients and job seekers. At least, one can say that the definition is the proper task of political decision-making, that can in principle be done in a number of ways.

Therefore, there is prima facie nothing wrong if the decision-making process establishes federal units with a second-chamber representation, provides political parties with special will-formation competences or attributes certain liberties and competences to various kinds of social and ethnocultural groups as such. If political decisions can establish groups as relevant distributive entities in the political sphere and if they then compete for scarce goods (party competition, federal decision-making, competition for public funds etc.), there is good reason to believe that the principle of equal opportunity applies to groups as well.

2. Going back to the first view of limitations, it is necessary to discuss the proposed relationship to meritocratic principles. Sometimes it is not only stated that equality of opportunity is confined to goods that are distributed according to desert within a competitive procedure (contest, examination), but that equal opportunity is identical with or contains the assumption that careers are open to the talented or ablest applicant (see Barry 2005, 39;

Galston 1997, 174; Gosepath 2004, 437ff). Stefan Gosepath formulates this idea in both

directions, when he writes:

"The central idea of fair equality of opportunity is therefore: Unequal shares of social posts and positions are fair, if they are achieved (deserved) and attributed according to qualifications." (440) "A person is in favour of equality of opportunity, because he wants to estimate true achievement or desert in order to reward or distribute accordingly. And turned around: For that person, who entirely rejects meritocratic criteria (at least within a certain sphere)" equality of opportunity cannot have a meaningful place in his conception of distributive justice." (441, my translation) The proposed conceptual framework rejects this assumption in three respects. First, equality of opportunity is not identical with meritocracy or the application of a desert criterion.

According to the framework, the place and point of the equal opportunity principle is entirely different to such an end-result criterion as desert. Second, meritocratic assumptions are not a necessary part of equality of opportunity. Equality of access and procedural conditions can be combined with other distributive criteria and principles as well. If these propositions are right, then the criticisms of the desert principle (vagueness of meaning, impossiblity of determination etc.), if sustainable, do not affect the equal opportunity principle (see Gosepath 2004, 440f). Third, the appropriate relation is rather revers: In order to be fair and acceptable to all involved parties, the desert criterion or procedure (like any other) has to be qualified with equality of access and conditions. The equality of opportunity principle does not and cannot provide reasons for the appropriateness of the distributive criterion. Its sole purpose is the fairness of the distributive process.6

III. Intercultural justice

1. A well-known justification for group rights within multiculturalist theory is that certain group-protecting measures for ethnocultural groups are necessary means for the rectification of their present disadvantages (see Kymlicka 1995). Kymlicka´s conception proceeds in two steps. The first step presents an autonomy- and identity-based argument for the essential value of individual cultural membership. It should be interpreted as something like a Rawlsian primary good. Thus, the first step focusses centrally on the determination of the relevant good or object of protection (Schutzgut). It states which good and the reason why it has to be protected. The point of the second step is to establish when and how the protection is necessary and justified.7 Its main argument invokes an equality principle that demands compensations for disadvantages, for which the demanding group is not responsible. And since mere inequalities are not necessarily disadvantages, it is inevitable at least to identify the agent or agents who could be held responsible for that situation. In Kymlicka´s conception this is typically the majority, that is the ethnocultural group that dominates public life and the Perhaps even this relation (at least in the context of job allocation) is what Cavanagh will reject because fairness will provide reasons for enforced intervention, although he also describes meritocracy as part of equality of opportunity (see Cavanagh 2002, 2f, 22f).

The theory of the right to culture (see Margalit/Halbertal) neglects the second step and therefore cannot determine the amount of protecting measures and is in this sense an all or nothing affair. Furthermore, if it is able to derive some rights from the fundamental right to culture (e.g. against discrimination or forced assimilation), they will be quite general rights of all citizens and not special rights.

political power. The equality assumption in this argument can be best interpreted as an equal opportunity principle for ethnocultural or minority groups (see Ladwig 2000), for it is intended to secure equal starting positions and equal procedural conditions in social and political affairs.

The impossibility of state neutrality in certain ethnocultural affairs and the inevitability of nation-building of the majority group are presented by Kymlicka as reasons, why minority groups in that society are regularly disadvantaged. Although the proposition of unavoidability of disadvantage seems to be overstated (not every minority is a disadvantaged minority), since the refered to relation is not a conceptual but an empirical and therefore variable one, the relation helps to illustrate the politically inspired competition for scarce goods. The equality argument concentrates on present disadvantages for it compares the situations relating to specific goods of majority and minority at a particular time-slice (cross-section task). The conception does not consider the effects of past disadvantages or historical injustices. But even though it is in principle possible to add it to the argument, the differences are considerable. The rectification of past disadvantages and injustices are typically a longitudinal section which do not compare different groups but the same group at different times.

Therefore, a combination will not be possible without difficulties.

2. Ethnocultural groups typically demand the removal of formal discriminatory rules and institutions (institutional change, exemptions), a better guarantee or legal means against prejudicial behavior (anti-discrimination laws), better chances of political competition or more secure protection of their vital interests (guaranteed representation, veto rights, selfgovernmental possibilities) and measures to mitigate their economic vulnerability (tax exemptions, financial aid from public funds or at least a fair share thereof). Some of these measures directly refer to individual members of such groups (anti-discrimination laws), others are best understood as liberties, immunities and competences of organizations or groups as such (e.g. the German law that exempts political parties of national minorities from the 5%-quota in national elections, or tax releases for religious organizations).

The central idea of the rectification of disadvantages between groups is to enable for all relevant groups to compete on an equal footing. The elimination of non-comparative injustices of particular subjects or their absolute vulnerability (survivance) is not within the scope of the argument. Furthermore, the argument is conceptually terminated. It seeks the elimination of the disadvantage. Thus, the duration, amount and scope of the justified measure depends on the duration, amount and scope of the concerned disadvantage. The duration may be long-lasting but not endless. Therefore, the argument faces some difficulties in the justification of permanent group-protecting measures or rights.

3. But even if it is settled that groups are relevant entities for the application of the equal opportunity principle and that certain group-protecting measures can be best understood as securing equal terms for groups, there remains the question of the relevant competitive constellations and the proper base line. According to Kymlicka, the appropriate base line of comparison or the reference point of determining disadvantages is the predicament of the majority at a particular time. So there is no absolute, external or other standard within the cross-sectional comparison.

Concerning the relevant context of justice, two conceptions can be distinguished. The independent single-relation view starts with the claims of a minority group that it is unfairly disadvantaged compared to the situation of the majority group. The cross-section compares only a single relation. And it is independent because other comparisons between other groups within the same society at the same time are justificatorily unconnected. The situation of other groups simply does not matter for this case. If they are considered, they are reflected independently, that is in sequence. This is the view Kymlicka does not advocate but does apply.

The constellation view, on the other hand, recommends to consider the entire societal situation of majority and various relevant minorities at once. In a situation of contest (participation in political decision-making) it is quite obvious to consider all involved parties at once. This is in part what equality of opportunity requires. The constellation view starts with the assumption that the relation between two groups have justice-relevant effects on other relations. Furthermore, it suggests that the justice of the parts cannot be determined independent from the justice of the entire constellation.8 Thus, the whole picture of intercultural justice will be more complex and complicated.

Perhaps in Kymlicka´s conception both end up with the same results, for he assumes that all minorities are necessarily disadvantaged. But even if this is granted, contrary to the above argument, different minorities do not normally suffer from the same disadvantages to the same degree.

4. The problem will be more difficult, if at least three other justice-relevant constellations are considered. a. Consider societies in which there is no clear or dominant majority, but simply various non-dominant groups of more or less equal size. For conceptual reasons it is impossible to speak of minorities where there is no majority. In this case one can speak only of different social or ethnocultural groups. And if no group was able unilaterally to dominate the political system and official culture, according to Kymlicka´s theory, there could be no problem with disadvantages. And even more, for the lack of a majority and the reference point of comparison, Kymlicka´s theory could not even meaningfully be applied. But if these groups compete for scarce public resources, equality of opportunity will obviously be one of the first priorities for the involved parties. In some contexts,9 it is rather likely that they will be anxious about any possible change in the balance of power (see Walzer). Furthermore, there is no reason simply to assume that there will be no disadvantages between the groups.

This would be contrary to social and political experience.

b. Consider societies where a majority is confronted with different minority groups of very different size and power. Then any unilateral change of the majority M - minority A-relation alters thereby also the comparative M - minority B-relation and the relation between A and B.

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