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The concept of a linguistic community
University of Toronto Law Journal  (IF1.234),  Pub Date : 2019-01-01, DOI: 10.3138/utlj.2018-0108
Érik Labelle Eastaugh

Abstract:The concept of a ‘linguistic community’ plays a critical role in Canadian language rights law, appearing explicitly in both the Constitution and in statutory law as well as featuring prominently in the case law. Despite its ubiquity, however, this concept has never been explicitly defined, nor has it been subjected to sustained analysis by the courts or in legal scholarship. This is problematic, as the term can be interpreted in divergent ways, and the choice one makes in this respect has the potential to substantially alter the content of various constitutional and statutory provisions. Reduced to its simplest form, the problem is that the word ‘community’ can be interpreted in one of two ways: (a) as designating a collective entity of some kind or (b) as nothing more than a shorthand for labelling a certain class of individuals based on their linguistic competency and geographic location. This article examines which of these options ought to be preferred when construing references to a ‘linguistic community’ in constitutional or statutory provisions or in the relevant case law. Part ii of the article examines the concept of a community from a philosophical perspective and outlines a theoretical framework for distinguishing between cases where a collection of people should be viewed as a mere aggregate of individuals and those where it should be conceptualized as a collective entity with interests distinct from its individual members. Part iii then explores how this framework can be used to better understand the somewhat murky conceptual foundations of the leading language rights cases. I argue that these foundations can be explicated or completed by combining the concept of a ‘community’ developed in Part ii with ideas drawn from the social scientific research on the relationship between language, culture, and identity.