Principles of Recognition: Or How to Move Forward?

The distinguished contribution of the piece does not merely lie with the reconceptualization of difference, the majority-minority nexus or its manifestation in current institutional realities but in formulating different strategies and principles as a way to juridify difference-based thinking. Five theoretical attempts are made, serving as theoretical basis for potential reconceptualization and in view of a paradigm that clearly departs from the persisting ad-hocism. In a first step, ‘principlisation’ shall be employed as a useful technical legal tool allowing pluralisms to be acknowledged, recognised, then formalised and codified, eventually streamlined into the law across the multiplicity of legal orders. In a second step, dubbed ‘proceduralisation’, procedural rights shall operate as so-called umbrella rights: indeed, procedural rights commonly facilitate the exercise of substantive rights such as, importantly, decision-making rights or those allowing to access justice, hence being of derivative nature. In a third theoretical attempt, termed ‘specialisation’, we are first reminded of the largely homogenising nature of (the) human rights landscape(s), building on the equality principle, and hardly differentiating between rights holder groups. Fourthly, ‘constitutionalisation’ processes provide for yet another channel to elevate collective or group-specific rights to constitutional rank, thereby integrating difference-specific rights into a superior framework, and with it, higher levels of recognition, effectiveness and due regard to be paid in case of conflict with other norms. In a fifth and final step, that of ‘pluralisation’, processes of pluralisation are studied in two senses, firstly, new pluralisms, that is, system-transforming principles are being introduced, secondly, the human rights landscape is widened to include group-specific rights not formerly envisaged by the law.