LLAW6179 Multiculturalism and the law

1.1 Course details

Course code: LLAW6179 / JDOC6179
Course name: Multiculturalism and the Law
Programme offered under: LLM Programme / JD Programme
Semester: Second
Designated research course: Not applicable
Specialization: Not applicable
Prerequisites / Co-requisites: No
Credit point value 9 credits / 6 credits
Note: Only open to students under the Law Programme

1.2 Course description

Conquests, colonial projects have long been responsible for the instigation of large-scale ethnic and national mobility in order to further the ends of empire, for example, for the purposes of labour and industrial development or populating land considered to be terra nullius. In the aftermath of the First and Second World Wars, which led to a significant redrawing of national boundaries in some regions and more significantly, the liberation of countries in other of the world, people once again moved; some, voluntarily and in pursuit of their dreams whilst numerous others, became victims of exile due to economic, social or political circumstances. By the end of the Cold War period, the showdown between capitalist and communist ideological power blocs waned as a result of the failures of Goberchov’s communist-styled government in the Soviet Union and the resultant loss of confidence in the Chinese Communist Party. This and a combination of factors including America’s embrace of isolationism, the onset of the Gulf War and economic and social strife, contributed to a pattern of migration that saw massive influxes of immigrants in Europe, Australia and America. The 21st Century has not seen any reduction in this trend of mass migration. Indeed, in the aftermath of 9/11, with the war in Iraq and Afghanistan, the exodus from the Middle-Eastern region continues. Similarly, there is widespread migration from the Eastern block of countries after the break up of the former Soviet Union.

This demographic shift has meant that the nation-state framework that originally dictated the exercise of sovereignty over one’s subjects is in need of a significant overhaul. With the growing multicultural representation of communities residing within their borders, nation states have had to grapple with the challenge to the very conception of a monolithic nationhood that comprises the experiences of a singular nation, peoples or culture. Concomitantly, governance structures predicated on presumptions about shared political, social and secular ideals have also demonstrated their inability to cope with the increasing number of ‘nationals’ that now profess divergent worldviews and commitments, especially where these views derive from personal frameworks of governance such as religious or cultural beliefs and practices.

In the aftermath of the Second World War and in an age of decolonisation, an increasingly complex regime of international provisions has emerged to safeguard the fundamental rights and interests of all people as human beings. Particularly noteworthy and of interest are the development of international human rights law in the form of framework conventions that seek to recognise the risks faced by vulnerable minorities and to protect them against violations of their religious, cultural, linguistic and political rights. These ideas became morally compelling given the atrocities and persecution minorities experienced during times of war, conflict, and colonisation. Apart from the protection of their differences and identity on grounds of their equal worth and dignity, the naturalisation of immigrants into nationals has foreshadowed a need to include their voices in democratic governance structures in light of their new political identities. Yet, naturalised citizens often fail to have their voices heard due to lack of representation, exclusion or marginalisation of their voices and concerns and oftentimes, they lack the capacity to exercise such agency to engage political infrastructure. These circumstances have precipitated one of the most serious crises of identity in an increasingly globalised world, whose borders continue to shrink and shift and as citizens and groups become highly hybridized. Each of these hybridized identities is seeking recognition and protection of their distinct rights and interests whilst sharing geopolitical spaces with other competing identities in close proximity.

This conflict which has manifested itself in the form of tensions regarding minority rights, the freedom of religion, the right to practice one’s culture and group rights and their limits. These conflicts have most acutely manifested themselves in liberal democratic states where these values are constitutionally enshrined. Questions have also arisen as to the extent of the state’s obligation to honour these interests and rights through appropriate schemes in the name of minority rights and the implications of accommodation, assimilation or integration on the core commitments that underscore the liberal democratic constitutional framework, including values such as equality, human dignity and non-discrimination on grounds of race, religion, culture, nationality, gender or other status. Oftentimes, the protection of some of these values results in a conflict with another entrenched value. In the circumstances, the liberal project’s commitment to individual freedoms and the practice of democratic engagement faces a paradoxical challenge that requires it to reconcile internal conflicts between these deeply held values especially when these freedoms stand to challenge the very rights framework from which they derive. Modern pluri-national states demand an alternative discourse that facilitates the reconciliation between meaningful plurality and the potential accompanying threats to the political structures that facilitate such plurality in the first place.

The course examines this conflict through comparative and interdisciplinary lenses, drawing on material from law, political theory, philosophy, and postcolonial studies to better understand the nature of identity, rights, citizenship and the discourse of oppression, violence and conflict. This work will be used to equip students with an enriched analytic framework through which to conceptualise the problems as they emerge in various countries today and to examine and understand the use of various governance structures, approaches and arguments to reconcile conflicting rights within the liberal constitutional framework in light of international human rights commitments. The course considers the use of various tools by courts around the world in dealing with multicultural difference as manifested in the form of language, dress, religious symbols and religious or cultural practices as well as their impact on immigrant and sub-national identities, and evaluates these outcomes in terms of the guarantees of equality and non-discrimination. In doing so, the course material draws on case studies from a range of jurisdictions, including America, Australia, Canada, France and other parts of Europe, Hong Kong in addition to salient international cases that have come before regional courts such as the European Court of Human Rights and international tribunals like the United Nations Human Rights Committee to compare the practices of various jurisdictions to explore the focal themes of the course and to consider the feasibility of integrated approaches to address this contemporary challenge.

The ultimate objective of the course is to probe and question existing approaches to balancing conflicts between fundamental rights and to identify and develop suitable mechanisms and frameworks through which to understand and address the challenges posed in multicultural societies. It is hoped such a critical inquiry can motivate discussions on how the state can better balance competing values by being mindful of the nexus of certain rights to the micro-level identities of minorities in a political community whilst maintaining the allegiance of all groups and individuals as nationals.

1.3 Course teachers

Name E-mail address Office Consultation
Course convenors Puja Kapai puja@hku.hk CCT 609 By email

2.1 Course Learning Outcomes (CLOs)

CLO 1 To introduce students to political theory on governance structures including liberal constitutionalism, theories of justice, value pluralism, accommodation and integration, and cosmopolitanism.

CLO 2 To introduce students to philosophical principles pertaining to justice, the common good and post-colonial theory relating to the construction of individual and group identity; the characterization of subaltern experiences of conflict, violence and oppression; and the role of agency and deliberative theory in constructing modern identity.

CLO 3 To introduce students to international legal frameworks and mechanisms protecting minority rights and cultures.

CLO 4 To enable students to use these analytical frameworks to understand, examine and critique existing practices of liberal constitutional democracies vis-à-vis minorities.

2.2 LLB Programme Learning Outcomes (PLOs)

PLO A On successful completion of the curriculum, students should be able to demonstrate a solid understanding of the body of legal knowledge and the capacity to conduct research on, critically analyse and evaluate legal principles, at a level required to meet the standards and expectations of the legal profession and the community at large.

PLO B On successful completion of the curriculum, students should be able to apply their legal knowledge and research skills to practical situations or theoretical challenges, and utilise their comparative understanding of the law and its political, social and cultural contexts to provide original and creative insights to legal problems.

PLO C On successful completion of the curriculum, students should be able to apply the knowledge, lawyering skills and legal reasoning to real and novel situations in life, with a view to resolving issues, problems and disputes within the legal parameters.

PLO D On successful completion of the curriculum, students should be able to demonstrate the ability to present effectively legal arguments in the professional context, as well as conveying and explaining the law effectively to lay clients and members of the larger community.

PLO E On successful completion of the curriculum, students should be able to appreciate the underlying moral values of the law and ethics in the profession and the legal system in the broad social, economic, political and cultural contexts: justice, the Rule of Law, and protection of rights and liberties which form the fabrics of a civilised society, and the importance of upholding these values by the legal community.

PLO F On successful completion of the curriculum, students should be able to develop a strong awareness of social issues and conditions, and utilise analytical abilities and rhetorical advocacy to provide leadership for the betterment of the human community.

2.3 Programmes Learning Outcomes to be achieved in the courses

PLO A PLO B PLO C PLO D PLO E PLO F
CLO 1  ✓  ✓
CLO 2  ✓  ✓
CLO 3  ✓  ✓  ✓
CLO 4  ✓  ✓  ✓

3.1 Assessment Summary

Assessment task Due date Weighting Feedback method* Course learning outcomes
Class participation and presentations TBC 15% 1, 2, 3, 4
Symposium participation TBC 15% 1, 2, 3, 4
Three reaction papers TBC 15% 1, 2, 3, 4
Research paper TBC 55% 1, 2, 3, 4
*Feedback method (to be determined by course teacher)
1 A general course report to be disseminated through Moodle
2 Individual feedback to be disseminated by email / through Moodle
3 Individual review meeting upon appointment
4 Group review meeting
5 In-class verbal feedback

3.2 Assessment Detail

To be advised by the convenor.

3.3 Grading Criteria

Please refer to the following link: http://www.law.hku.hk/course/grading-criteria/

 

 

4.1 Learning Activity Plan

Seminar: 3 hours / week for 12 teaching weeks
Private study time: 9.5 hours / week for 12 teaching weeks

Remarks: the normative student study load per credit until is 25 ± 5 hours (ie. 150 ± 30 hours for a 6-credit course), which includes all learning activities and experiences within and outside of classroom, and any assessment task and examinations and associated preparations.

4.2 Details of Learning Activities

To be advised by convenor.

5.1 Resources

Reading materials: Reading materials are posted on Moodle
Core reading list: TBA
Recommended reading list: TBA

5.2 Links

Please refer to the following link: http://www.law.hku.hk/course/learning-resources/


By the publication of the course profile on-line, the Faculty deems the student as having been notified of the course requirements.