LLAW6179 & JDOC6179

General Course Information

1.1 Course details

Course code: LLAW6179 / JDOC6179
Course name: Multiculturalism and the Law
Programme offered under: LLM Programme / JD Programme
Semester: First
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 and colonialism have resulted in the large-scale mobilisation of ethnic groups and nationals from colonised nations 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 parts of the world, people once again moved; some, voluntarily and in pursuit of their dreams whilst numerous others, became victims of exile or refugees due to economic, social or political circumstances and persecution. By the end of the Cold War period, the showdown between free market economies based on a liberal democratic model and communist regimes espousing their ideological superiority and power 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 large-scale immigration in Europe, Australia and America. At the same time, liberal constitutional democracies were being hailed as the most effective blueprints for rebuilding nation states that had collapsed and needed to be reorganised to embrace pluralism, multi-ethnic and multi-religious populations. The model continued to be exported and promoted by ‘Western’ powers in a range of contexts but not without their challenges and unique barriers to successful implementation.

The 21st Century has not seen any reduction in the trend of mass migration. Widespread migration from the Eastern block after the breakup of the former Soviet Union ensued. Especially in the aftermath of 9/11, the war in Iraq, Afghanistan and the crises in Libya and Syria, the exodus from the Middle Eastern region continues at an alarming rate. Countries that have again reached crisis point are Afghanistan in the wake of the departure of American troops but also, Myanmar given the ongoing genocide against Muslims, in particular in the Muslim-majority Rakhine state, and now, Ukraine in the war against Russia. The displacement of people from their homes caused by such crises have exacerbated the global refugee crisis, which was already at a tipping point. The composition of most refugees, whether victims of war, genocide or climate calamities betrays the realities of global power and its victims. Numerous people are finding new homes in the wake of such crises, far away from family, cultures and social contexts they are familiar with. Others still continue to migrate in response to economic opportunities and in search of political asylum.

This demographic shift has meant that the nation-state framework which justifies the exercise of sovereignty over one’s subjects needs critical review and modernisation. With the growing numbers of ethnonational communities and minorities residing within their borders, nation states continue to grapple with the challenge of applying an outdated conception of a nation predicated on the notion of monolithic nationhood that comprises the experiences of a singular nation, peoples or culture. Governance structures which are based on underlying presumptions of shared political, cultural, social and secular ideals have demonstrated their inability to cope with multicultural communities characterising divergent value systems derived from personal frameworks of governance such as religious or cultural beliefs and practices as well as linguistic differences.

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 human beings, especially minorities to protect them against violations of their dignity, and their religious, cultural, linguistic and political rights. These ideas propelled the debate pertaining to the universality of human rights and became even more morally compelling in the post-world war period which witnessed an explosion of treaties to guard against the repeat of the atrocities and persecution experienced by individuals and communities perceived as the ideological other, vulnerable to mass evisceration. However, we are now witnessing a new era in which notions of universal human rights have been challenged or interpreted selectively by newly independent regimes and new superpowers rising to the global political stage.

Apart from the protection of minority identities, the (barriers to) naturalisation of immigrants as citizen nationals has exposed gaps in the liberal democratic framework and its unquestioned exportability as a model with a universal capacity for justice and equal protection irrespective of identity, foreshadowing the need for a reconsideration of governance structures and democratic processes to ensure that minority voices are included in political participation and policy making and most importantly, civil society and citizenship regimes. Yet, the comeback of majoritarian and identity politics or perhaps it is more accurate to say their resurfacing after decades of operating in the peripheries have led to their swift redeployment to exclude and marginalise the political ‘other’ yet again. We see a more virulent return to the use of hate speech to exclude, marginalise and render precarious certain bodies within the body politic but also the use of law and politics to marginalise and render specific groups and individuals vulnerable to exclusion, oppression and violence. Naturalised citizens of diverse ethnic, national or religious backgrounds are once again targets of identity politics which has been resurgent globally of late in the lead up to Brexit, the US elections, the military coup in Myanmar, and the rise of toxic nationalism in Europe, Latin America, India and elsewhere in Asia. These circumstances have precipitated one of the most serious crises of identity in an increasingly globalised world, whose borders continue to shrink and shift even as citizens and groups have become highly hybridized or cosmopolitan in their identities. Each of these hybridized identities is seeking recognition and protection of their distinct rights and interests whilst sharing geopolitical spaces with other competing identities.

These conflicts have most acutely manifested themselves in liberal democratic states where human rights and freedoms are constitutionally enshrined and civic space has traditionally welcomed the open discussion of these issues. However, the tides have shifted swiftly. Questions have arisen as to the extent of the state’s regional and international obligations to honour these 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, 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, liberal constitutionalism confronts a paradoxical challenge given its commitment to individual freedoms and democratic engagement that requires it to reconcile internal conflicts between constitutional rights, especially when honouring some of these rights result in challenges to other rights, seemingly undermining the liberal constitutional framework’s capacity for equal justice for all. Modern pluri-national states demand an alternative discourse that facilitates a reconciliation between meaningful plurality and responds effectively to the accompanying threats to the political structures and value systems that facilitate plurality in the first place. These debates are also raging in parts of Asia and warrant closer contextualised study – an area that remains understudied.

The course examines this conflict through comparative, interdisciplinary and intersectional 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. Intersectionality theory demonstrates how multiple vectors of disadvantage coalesce to create distinctly vulnerable population groups who are at heightened risks of ensnarement into trafficking or exploitation for labour and sex or otherwise, likely to be subjected to harmful cultural or religious practices or at risk of marginalization, discrimination, violence, poverty or death, among other things. In particular, those living in poverty, those belonging to minority groups, minorities within these minority groups, for example, women and girls, children, persons with disabilities or an unstable immigration status, are all groups exposed to intersectional disadvantages and discrimination. However, such individuals and groups routinely fall through gaps in legal systems at both the domestic and international levels.

Drawing on these interdisciplinary perspectives will equip students with an enriched analytical framework through which to conceptualise the problems as they emerge in various countries today and understand them in light of human rights obligations taken on state parties under regional human rights treaties and the United Nation’s treaty framework.

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 or the protection of specific minority rights. 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, India, and 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 in light of 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 reflect upon, identify, and develop suitable frameworks through which to better understand and address the challenges faced by multicultural societies and strengthen legal pluralism through legal, policy and other institutional measures. 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 between certain rights to the micro-level identities of minorities in a political community whilst maintaining the allegiance of all groups and individuals as nationals to the core nation state as a sovereign entity. More crucially, the course takes a pragmatic approach to equip students with the skills to incorporate the learnings from the course, discussion and symposium into their professional pursuits.

1.3 Course teachers

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

Learning Outcomes

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- -vis minorities.

2.2 LLM and JD Programme Learning Outcomes (PLOs)

Please refer to the following link:

LLM – https://course.law.hku.hk/llm-plo/

JD – https://course.law.hku.hk/jd-plo/

2.3 Programme Learning Outcomes to be achieved in this course



3.1 Assessment Summary

Assessment task Due date Weighting Feedback method* Course learning outcomes
Class participation and panel presentations TBC 15% 1 ,3 1, 2, 3, 4
Symposium presentation 21 & 28 Nov 2023 15% 1, 3 1, 2, 3, 4
Three reaction papers 1st due: 28 Sept 2023
2nd due: 16 Oct 2023
3rd due: 16 Nov 2023
15% 1, 3 1, 2, 3, 4
Research paper 8 Dec 2023 55% 1, 3, 5 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: https://www.law.hku.hk/_files/law_programme_grade_descriptors.pdf

Learning Activities

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 course convenor(s).

Learning Resources

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/