Identity Rules, Group Rights and the Promise of Liberalism

In nineteenth-century Japan, the Shogunate came under pressure from Western powers. One point of tension was religious freedom.

Christianity had been illegal in Japan for centuries. But, with the opening up of Japan, the Western powers successfully secured freedom of religion within Japan for Western diplomats, merchants and visitors. The Harris treaty of 1858 specified that “Americans in Japan shall be allowed the free exercise of their religion, and for this purpose shall have the right to erect suitable places of worship.”

This did not secure freedom of worship for all Japanese. The Shogunate might grant foreigners freedom to worship. But it was unwilling to allow proselytizing or to permit Japanese Christians. When a community of previously hidden Japanese Christians was discovered by French missionaries in Urakami they were imprisoned and their chapels pillaged.

In its attitudes towards religion, the Shogunate resembled other premodern governments. The default was religious unfreedom. To the extent that religious diversity was permitted, it was based on group, rather than individual, rights.

By contrast, in modern Japan, as in Western countries, it is individuals, rather than groups, who have rights. The contrast between Japan under the Shogunate and Japan today helps to illustrate what it means to live in a liberal society, a society structured around the ideal of freedom under the rule of law. In the Constitution of Liberty, F. A. Hayek writes: “What distinguishes a free from an unfree society is that in the former each individual has a recognized private sphere clearly distinct from the public sphere, and the private individual cannot be ordered about but is expected to obey only the rules which are equally applicable to all.”

The rule of law requires rules that are predictable, stable, general and applicable to all individuals equally. Since general rules are predictable, individuals can plan their lives around them. Hence, the rule of law allows each individual to carve out a private sphere for herself and her family. Everyone is treated as an individual rather than as a member of a group. This is an aspiration rather than a reality. But it is an aspiration that characterizes liberal societies and is alien to non-liberal societies.

The rule of law constrains the arbitrary power of government and is a crucial ingredient in limiting state power. But it also requires a government with legal and administrative capacity. It requires courts staffed with impartial judges, competent and non-corrupt police forces and administrators and responsible and informed policymakers. The Shogunate was no different from premodern European states, the Islamic world or countless other empires. Throughout history, what mattered was what group you belonged to. This was because governance was based on identity rules.

Identity rules depend on the social identity of the parties involved. Religion was an important part of individual identity. Identity rules treat individuals differently on the basis of their religions. Since shared religious beliefs and identities were crucial to maintaining social order, religious differences were destabilizing. In a world where a common religious identity undergirded not only religious institutions but also the state and civil society, religious freedom and liberalism were unthinkable.

The US, Britain and other Western countries began moving away from identity rules in the nineteenth century. This was a radical break with the past because it meant reconstituting states on the basis of general rules, rules that applied to all citizens equally. In our new book Persecution and Toleration, Noel Johnson and I examine how the shift from identity rules made possible religious freedom and the liberal order under which we currently live.

We argue that the development of the rule of law in Western Europe and North America required the development of states that no longer relied on religion for political legitimacy and that had the capacity to enforce general rules. This path was a rocky one. It took repeated failures before states gave up trying to eliminate religious diversity and to accept individual rights.

In an environment in which liberalism is often derided, it is important to restate the core principles of a liberal society: the rule of law and general rules. Understanding the historical process of institutional change through which liberalism became possible is an important first step. This is what we seek to do in Persecution and Toleration.

Identity Rules and Group Rights

Identity rules permit group rights but not individual rights, which require protection, in the form of rules that treat individuals equally before the law. In Rationalism, Pluralism and Freedom, Jacob T. Levy writes: “There is a deep, recurring tension within liberal political thought between seeing those groups that stand between the person and the central state as sites where free people live their diverse lives, and seeing them as sites of local tyranny that the liberal state must be strong enough to keep in check.” In a liberal society, individuals freely form, join and leave a variety of groups. Some of these groups are secular, others religious; some involve charity work or volunteering, others shared hobbies or interests. Some are tightly knit and cohesive, others loose and free form. Many are not in tension with mainstream society. But others engage in activities that are widely disapproved of: extremist religious movements, dangerous sports or fringe sexual activity, for example.

In a liberal society, however, the freedom of individuals to pursue activities of which the majority disapprove is crucial. We might consider such activities frivolous, ill-conceived or even disgusting but we recognize that this doesn’t mean that they should be suppressed by the state.

Different people will disagree about where to draw the line concerning what is incompatible with a liberal society. Perhaps the group prohibits exit. Or perhaps the group uses violence against its own members or coerces children.

A liberal society can and must allow pockets of illiberalism within it. But it cannot entirely turn a blind eye to abuses within such communities, without undermining its own liberal foundations. Nor can a liberal state grant such illiberal groups political power.

The tensions between group rights and individual rights are the subject of ongoing debate. Problems arise, however, when this distinction is obscured: when the discussion is framed solely in terms of bland terms like tolerance or multiculturalism, rather than in recognition of this fundamental trade-off.

Indeed, the extent to which, in modern societies, group rights have returned under the guise of multiculturalism is troubling. While the pathologies of multiculturalism have attracted attention from political commentators, what has gone largely unnoticed is the extent to which group rights in practice (if not in their justification) resemble those used by premodern states towards religious minorities. The return of self-governing faith communities can thus be seen as reflecting a broader collapse of the modern liberal state.

Multiculturalism and the Return of Identity Politics

Groups’ political rights have political consequences. These consequences are magnified if the groups in question have values that are at variance with those of the rest of society.

Examples of how liberal states have negotiated the trade-off between group and individual rights abound. In Persecution and Toleration, Noel Johnson and I document the tensions that existed between Jewish communities and modern European states following the Enlightenment. To take another example, in Sacred Liberty, Steven Waldman discusses the travails experienced by Jehovah’s Witnesses in mid-twentieth-century America. Another example are the Mormons, who gave up polygamy as a condition of political recognition.

What about today? Western countries have handled this trade-off in different ways. Britain and the Netherlands have gone further down the road of granting religious minorities group rights than have France or the US.

In the Netherlands, group rights reflect the longstanding practice of pillarization, whereby Protestants and Catholics living alongside each other developed separate social, economic and religious institutions. Historians such as Joris van Eijnatten view pillarization as a means to achieve concord between different groups, but they dispute that it was a forerunner of modern liberalism.

Christian Joppe notes that “while no ‘Islamic pillar’ was ever built, Muslims came to profit from a historically accommodationist religion-state regime.” Islamic schools are subsidized, as are mosques. Public television celebrates Muslim festivals. “Imam training is provided at Dutch public universities. Muslim chaplains are funded by the government in the army, in prisons and in hospitals. Naturally, there is free air time for Islamic programs on public TV channels.” Criticism of this political accommodation of Muslim community rights can provoke accusations of Islamophobia.

A similar dynamic is evident in the relationship between the British state and the Muslim Council of Britain (MCB), founded in 1997. Successive British governments found it convenient to deal with the MCB as representative of all British Muslims—thus outsourcing the task of representing and governing British Muslims to an unelected community body. This continued despite increasing recognition that the MCB embodied a conservative strand of Islam.

Since 2010, government attitudes towards the MCB have hardened. But the reliance on the community to police its own and to look out for radicals and extremists, in what has been called policed multiculturalism, remains. The British government prefers not to govern British Muslims directly but to rely on community leaders. Such policies have consequences.

The Consequences of Group Rights

One tragic example of the consequences of granting illiberal communities the right to largely govern themselves was exposed only recently: the child sex rings that existed for decades in many British cities, more or less unchallenged by the authorities.

Though the total number of victims involved is in the thousands—and despite police reports on the problem going back to 2002—little action was taken by either the police or local government. While many factors were at work, this tragedy was in part a consequence of allowing a community to govern itself. Numerous impartial reports, including the Jay Report commissioned in 2014, detail how fear of appearing racist prevented police from investigating allegations against Asian (predominantly Muslim) men. The Pakistani community in Rotherham, in particular, protected its own and deterred investigations.

While some commentators on the right sought an explanation in either Islam as a religion or in the cultural background of the perpetrators, a wider institutional perspective would point to the hands-off way in which the British state has sought to deal with its Muslim minority. Local councillors were deeply complicit in ignoring the complaints of the victims for years. Examinations of this tragic episode show that this was not the failing of a small number of individuals, but a systematic and predictable outcome of a policy of delegated rule. In his scathing indictment of multiculturalism in the UK, The Tribe, Ben Cobley notes that

In refraining to confront the mass child sexual exploitation of troubled girls in Rotherham and other places around Britain for example, public sector workers may have let their moral compasses slip. However, this is a natural response when your work is so dominated by bureaucratic processes … that cede authority to community leaders, offering them and their communities protection as a matter of right. In situations of doctrinal, systemic non-interference and favouritism like this, the force of law and equality before the law will suffer.

Rotherham was not an isolated incident. Across Britain, there are cases in which the rule of law was abandoned by local police, prosecutors and councillors in deference to the wishes of local communities. This is what can occur when the liberal state abandons the responsibility of governing. The forces unleashed may be difficult to contain: each time stories like this break, it fuels anti-Muslim sentiment and risks enflaming illiberal and racist tendencies.

In the US, Muslim communities have not been associated with scandals like Rotherham. While there are, of course, many explanations for this, one reason is the different institutional environment that they face. Mosques in America compete in a vibrant religious marketplace free from state inference. Muslim religious communities are not players in local politics.

Lessons from History

Dealing with diversity is difficult. Premodern European states struggled for centuries with tensions between Christians and Jews, Protestants and Catholics. Perhaps the lessons from this experience have not been fully learned.

One popular narrative attributes the rise of religious freedom in Western Europe to greater tolerance at the individual level. People came to be less prejudiced against those with different beliefs. Liberalism was the result of a change in underlying preferences.

The alternative view is that we are not so different from our ancestors, ancestors who burned heretics and witches. The main difference is that we live under institutions that successfully suppressed religious conflict. These institutions were built on the separation of religion and politics and the recognition of equal rights under the law. Understanding how this came about requires an appreciation of history. Liberal societies are the product of a long process of institutional change. If the institutions responsible break down or are eroded, we should not be surprised to see illiberalism return.