Living Diversity – Shaping Society

The Opportunities and Challenges Posed by Cultural Difference in Germany

,

• Publisher: Verlag Bertelsmann Stiftung
• Year: 2018
• ISBN:
  9783867938471
• Edition: 1
• Topic: Politica e relazioni internazionali
• Subtopic: Politica pubblica

Religious, cultural and linguistic diversity has always been a reality in Germany. Yet determining what constitutes success in terms of dealing with diversity on a day-to-day basis is a matter often subject to debate. Demonstrating respect for each other while living together in diversity must be cultivated but also involve the active participation of everyone affected. We experience diversity every day in our communities: in our neighborhoods, schools, at work and in our free time. The "Living Diversity - Shaping Society" publication accompanying the Reinhard Mohn Prize 2018 offers insight into how Germany can effectively target living well together in a multicultural society marked by social inclusion and respect for diversity. It analyzes current approaches in Germany, examines good practices found in other countries and recommends actions that can be taken to cultivate a positive experience with diversity. Contributions by distinguished authors such as Armin Nassehi, Doug Saunders and Bart Somers explore the issue from various viewpoints.

I. Approaches to Cultural Diversity in Germany

Regulating Cultural Diversity in Germany

Michael Wrase

Regulating cultural diversity in an immigration society: Cornerstones of the German debate

Though widely accepted today, describing Germany as a country of immigration was for many years the subject of considerable political controversy. The 2015 refugee crisis that brought more than 1 million people to Germany played a major role in ensuring that basic questions regarding an effective integration policy and its legal regulation were placed on the policy agenda (Lehner and Wapler 2018). Yet the process of ethno-cultural pluralization in Germany reaches much further back, having started with the “guest worker” policies introduced in the 1950s and 1960s. Pluralization was advanced in the 1990s, not only by the repatriation of ethnic Germans from the former Soviet states and by immigration from Eastern Europe, but also by waves of immigration – first from the Middle East and then from the Balkan states affected by the civil war in the former Yugoslavia. Today, more than 20 percent of Germany’s population has some kind of migrant background as defined by the Federal Statistical Office (Brückner 2016).¹

If we take religious affiliation as a key indicator of cultural identity, we see a remarkable sociodemographic shift underway: While 95 percent of the population belonged to one of the two main Christian churches in the 1960s, that number has dropped to about 56 percent in contemporary reunified Germany (EKD 2017). At the same time, the proportion of Muslims living here has continuously grown, reaching between 5.4 and 6 percent of the population, a share that is projected to grow to 10 percent in the next decade (Statista 2017).

Contrary to arguments of years past regarding the progressive secularization of society, global migration has actually magnified the importance of religious affiliation in processes of identity formation (Berman, Bahargava and Laliberté 2013). Given these developments, German law must also address the ethno-religious pluralization of society (Schuppert 2017). The enormity of this challenge becomes clear as soon as one considers the (implicit) relevance of notions of social homogeneity in traditional German constitutional thinking.

According to the so-called Ernst-Wolfgang Böckenförde dilemma, the “liberal, secularized state is nourished by presuppositions that it cannot itself guarantee. That is the great gamble it has made for liberty’s sake.” According to Böckenförde, the state can “only survive as a liberal state if the liberty it allows its citizens regulates itself from within on the basis of the moral substance of the individual and the homogeneity of society” (Böckenförde 2016: 45). Within this context, the “homogeneity of society” to which Böckenförde and other constitutional experts refer should be based on a kind of national similarity, namely, a shared language, culture, religion or history (Hanschmann 2008: 43). For migration law, this means that linguistic and cultural assimilation would be conditions for acquiring citizenship and rights of political participation in particular.

These kinds of approaches to constitutional theory are consistent with arguments based in sociology, such as those advanced by the esteemed scholar Ruud Koopmans of the WZB Berlin Social Science Center. Drawing on his primarily quantitative and comparative research and pointing to the example of the Netherlands, Koopmans argues that integration policies that incentivize high levels of linguistic and social assimilation among migrants result in their improved educational success and labor market integration and to lower incarceration rates than do policies focused exclusively on multiculturalism. For Koopmans, the idea that the state need not provide strong incentives for language acquisition and intercultural contact is a fallacy because migrants naturally prefer to remain among those with the same ethnic, linguistic and cultural background. Instead, he argues, the state must regulate to counteract “the real threat of fostering a segregated, parallel society in which the preference for one’s own group and the influences of one’s country of origin are powerful” (Koopmans 2017: 18). Koopmans does acknowledge that countries featuring legal systems which recognize cultural diversity to a much greater extent than German law does (Berry and Sam 2014: 103) – such as Australia, Canada, the United Kingdom and the United States – have demonstrated success with their integration policies. But he attributes this success in large part to the fact that these countries have weaker social safety nets and give stronger weight to principles of merit when accepting immigrants.

Undeniably, Koopmans raises an important point with his warning against a laissez-faire style of multiculturalism, one that is also relevant for regulatory issues. If we are to keep the cultural spaces opened up by integration from creating a situation in which a majority society erects barriers to social inclusion and even violates the basic rights of migrants, granting rights to newcomers must go hand in hand with establishing limits on these rights. But the juxtaposition of “assimilation versus multiculturalism” as “conditions of successful integration” (Koopmans 2017) can at most be seen as the escalation of a debate that must be treated with more care in terms of its legal foundation.

Heiner Bielefeldt correctly notes that integration, when viewed from the perspective of human rights – which are firmly embraced by Germany’s Grundgesetz, or Basic Law (Article 1 Section 2) – cannot be understood unilaterally as a function of immigrant minorities’ capacity to adapt to a majority society’s culture, however that may be defined. Though based in part on the simple reality of multiculturalism, this approach to integration derives more fundamentally from the recognition of human rights that underpin our liberal society. This includes a respect for civil liberties that “guarantee individuals the space to express their cultural way of life, both in public and in private,” Bielefeldt writes (2007: 18), adding: “Given the conditions of modern migration, a society that sees itself as committed to civil liberties must embrace cultural diversity and thus proactively define itself as a multicultural society.” However, Bielefeld does mention the limits to freedoms of cultural expression that derive from the need to protect the public interest and the basic human rights of others. In other words, the use of physical violence or coercion by family members as a means of enforcing certain “cultural” practices, for example, would not be admissible.

Insofar as German legal discourse addresses cultural diversity, the limits placed on cultural freedom by fundamental and human rights are given special weight. Because of their relevance to identity formation, cultural matters take on legal significance vis-à-vis other aspects of fundamental rights. This reflects the underlying premise of UNESCO’s 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions.² According to Article 2 (1) of the convention, “Cultural diversity can be protected and promoted only if human rights and fundamental freedoms, such as freedom of expression, information and communication, as well as the ability of individuals to choose cultural expressions, are guaranteed. No one may invoke the provisions of this Convention in order to infringe human rights and fundamental freedoms as enshrined in the Universal Declaration of Human Rights or guaranteed by international law, or to limit the scope thereof.”

Cultural expression is therefore treated primarily as a matter of protecting one’s own identity, which is essential to human and fundamental rights, and thus also demands attention in the event of conflicting with interests of the majority society (Krugmann 2004: 18f.). This is also expressed through the special protection afforded to freedom of religion in Germany as an unconditional right in the Basic Law (Article 4, Sections 1 and 2) and through the special ban on discrimination (Article 3, Section 3, sentence 1).

Given the complexity of the topic, providing a comprehensive overview of how cultural diversity is treated by Germany’s legal framework would go beyond the scope of this contribution. In the following, I clarify basic questions and legal principles, particularly civil liberties and the principle of non-discrimination. Drawing on specific areas of conflict for illustration, I aim to show how legal frameworks (can) shape coexistence in a culturally diverse context. While more recent court decisions suggest a growing tendency to return to views of integration as assimilation, I argue that acknowledging cultural diversity through laws and regulations is a prerequisite to facilitating successful integration. I focus on public education as a sensitive area and key forum for social and cultural integration. In addition, I explore the long-running and heated debate over the ban on headscarves among civil servants in the German education system.

Cultural identity and the law: Self-ascription or ascription by others

A fundamental challenge to assessing regulatory issues of cultural diversity in Germany lies in the fact that German law does not recognize the concept of cultural rights. The notion of culture in this context is quite broad and not clearly defined by international documents, such as the UNESCO Universal Declaration on Cultural Diversity.³ Interestingly, Article 5 of this declaration references Article 27 of the Universal Declaration of Human Rights and Articles 13 and 15 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Thus, the right to education is explicitly identified as a cultural right although it is generally understood as a social right (Beiter 2006). It follows that, in terms of protecting human rights, cultural and social aspects cannot be treated in isolation (also Bielefeldt 2007: 14f.).

In her analysis of cultural rights in German constitutional law, German legal scholar Gabriele Britz draws on international scholarship in viewing cultural identity as a constructed sense of belonging to a group that is shaped by markers (e.g., ethnicity, heritage, ancestry, religion and language), but which is determined by a process of self-ascription or ascription by others – and not on the basis of clearly objective characteristics (Britz 2000: 68ff.). The group aspect, which is also highlighted in the UNESCO Convention on Cultural Diversity, plays a decisive role. After all, culture is what marks “a group’s distinctive way of life along with its collective patterns of behavior and thinking” (ibid.: 70f.). Thus, when it comes to such patterns of a group with which a person either feels affiliated or to which one is ascribed by others because of ethnicity, heritage, ancestry, religion or language, we can speak of specific forms of cultural expression.

If the law directly addresses externally ascribed group affiliation, it runs the risk of codifying both difference and inequality. Susanne Baer (2010) describes the challenge posed by any legislation anchored in definitions of difference as follows: “Dividing people into groups reduces them to a characteristic or a trait, thus homogenizing people who may have some but not all things in common. Those who focus on groups tend to reinforce collective-identity concepts as identity politics. This benefits elitist representational politics because groups have ‘leaders’ who speak for others, who are then ignored. This dynamic is a central feature of nationalism, which Rogers Brubaker analyzed in his critique of groupism; it is also an essential aspect of multicultural policymaking that Anne Phillipps criticizes in her plea for ‘multiculturalism without culture.’”

As a result, any legislation that refers to either (supposedly) objective differences that mark a group or a cultural or ethnic identity that has been ascribed by others will always pose problems (see Moran 2014: 300f.; Jivraj and Simpson 2015: 2f.). Statutory regulation must therefore be able to accommodate cultural differences without simultaneously essentializing socially constructed group affiliations. With these objectives in mind, there are two key aspects of protecting fundamental and human rights to consider: civil liberties and anti-discrimination measures.

In terms of civil liberties, the protection of an individual’s cultural identity is guaranteed precisely by the fact that cultural self-ascription is of growing importance for those with fundamental rights.⁴ One example is the Federal Constitutional Court’s decision regarding religious freedom as stipulated in Article 4 Sections 1 and 2 of the Basic Law. According to the case law of the Court, protection is granted not only to religious practice in the narrow sense, but also to the “right of individuals to align their conduct with the teachings of their faith and to act in accordance with this conviction.”⁵ But that does not mean “that any behavior – solely on the basis of its subjective purpose – must be regarded as an expression of religious freedom. State institutions may check and decide whether it has been sufficiently proven – given spiritual content and outward appearance – that the behavior in question plausibly fits within the scope of protections provided by Article 4 of the Basic Law – in other words, that its motivation may be seen as religiously based. But the state may not evaluate its citizens’ religious beliefs themselves, or even characterize them as ‘right’ or ‘wrong.’”⁶

In addition to references to “religion and belief,” German anti-discrimination legislation still uses – problematically – the terms “race” (see, e.g., Article 3 Section 3, sentence 1 of the Basic Law; Section 1 General Act on Equal Treatment (AGG)) and “ethnic origin” (Section 1 of the AGG). However, the Act clearly states (Section 7 parag...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Foreword
• Cultural Difference in Germany: Living Together in Diversity
• I. Approaches to Cultural Diversity in Germany
• II. International Perspectives
• III. Cities as Diversity Laboratories
• The Authors