| This dissertation analyzes the extent to which France and Germany protect the cultural rights of minorities. The focus is on domestic laws and policies that safeguard specific cultural traditions considered constitutive of the way of life of immigrants. I investigate this question on the basis of four types of issues which are of crucial importance to Muslims, the largest minority group in both countries, and the most active in the pursuit of legal pluralism: Muslim family law; the right of Muslim girls and women to wear the hijab to school and work; ritual slaughter; and the recognition of cultural needs in health care and traditional burial practices. Each case is examined in the context of the applicable provisions of French and German laws, court decisions, and public policies.;The contemporary debate on cultural minority fights in political theory and international law provides the theoretical context for my analysis. I argue that this debate is characterized by a "parallel discourse," with each discipline pursuing a largely independent research agenda with minimal reciprocal recognition. In other words, human rights scholarship operates in a virtually theory-free space, and, conversely, theorists show almost no concern for the practical policy implications of their normative theories. Consequently, either approach is of limited use as a blueprint for the legal recognition of ethnic customs by states. The deficiencies of this "parallel discourse" are mirrored in the selective and discriminatory institutional responses to cultural traditions, which indicate little regard for the importance of "cultural identity." I contend that a more equitable framework for multicultural accommodation is needed. Expanding on the model advanced by Poulter, I argue that cultural rights claims should be evaluated based on the permissibility of the practices in the individual's country of origin, instead of their compatibility with the European Convention on Human Rights, as Poulter suggests. Furthermore, the parameter for the limits to tolerance should not be Poulter's "repugnancy" standard, but whether a custom would cause "permanent physical or psychological harm" to the individual. |
