Language Rights: Theoretical Challenges
The constitutional protections for the French and English languages have traditionally been treated as little more than a political compromise - the product of successive back room deals between major players on the constitutional scene. They are capable, however, of treatment as genuine human rights, and the attempt to develop such an account requires consideration of, and sometimes rethinking of, key elements in a theory of rights. This, in turn, stands to have important implications for the ongoing interpretation of these rights.
The starting point for such an analysis is an account of the nature of the interest in the use of one's own language that might be thought capable of generating duties in others to facilitate the exercise of one's right. This adopts an interest theory of rights, in contrast to a choice theory or more formalistic accounts. An interest theory conforms to what I think is the right structure of rights claims - it makes plain that it is the importance of the interest at stake that justifies the imposition of duties - and at the same time it allows us to develop a conception of important human interests that can take account of changing social circumstances.
The relevant interest here is the interest in the use of one's own language, not simply in a language. I argue that this interest must not be understood in purely instrumental terms; it is not a matter of how easy it is to get things done in a particular language. Rather, a claim to the use of one's own language must be understood to be grounded in the intrinsic value of that language as an expression of the communal life of the group of people whose language it is. Language is an aspect of culture, and its use unites its users as a community. Its use attracts protection as long as that community continues to manifest its affiliation to the language through its use in normal contexts of everyday life.
Since this interest is not capable of being fully understood in terms of the interests of individual speakers, language rights are best understood as collective in nature, as based on the interest of the group as a whole in the continued flourishing of its language. This is a stark contrast with the more usual individualistic conception of rights that dominates most other theories of rights, and requires re-examination of the individualistic bias of traditional theory. A collective account helps to explain what would otherwise be puzzling features of the official language rights, such as the fact that access to minority language education is conditioned on there being numbers sufficient to warrant its provision. Education using a specific language as its medium is obviously crucial to the continuation of a language community. Yet there must be a community to begin with for it to make sense to provide schools. Although this condition must take account of the legitimate claim of long-stressed minority communities to support in order to overcome a history of governmental neglect and even hostility, access to minority language education still requires a critical mass of speakers to make it intelligible as a good.
Despite this collective underpinning, several of the official language rights included in the Charter are accorded explicitly to individual speakers. An example is the right to use either French or English in certain judicial proceedings. Even this right, however, is best understood as grounded in the interests of the community as a whole in its linguistic security, since only this understanding can justify the creation of the complex apparatus involved in the maintenance of a bilingual judicial system. Once that apparatus is in place, access to it can be constructed as an individual right, but we should not lose sight of the justification for the apparatus itself.
This exploration of language rights as genuine human rights prompts a reconsideration of the variety of human interests capable of grounding rights claims as well as the question of who the appropriate holder of these rights is. These are both issues long considered key elements of a theory of rights, but through consideration of this concrete context, are adapted to better account for one aspect of a modern multicultural society. In turn, developing the theoretical foundation of language rights may help inform judicial decision-making which might otherwise hollow out the substantive meaning of these provisions, simply for want of a better theory capable of giving them greater depth and meaning.
This article was first published in the Spring 2005 issue of Nexus.