Taking Group Rights Carefully
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Description
There is no logical difficulty with the idea of group rights. According to the most persuasive analytical treatment of the subject, an individual is said to have a right when an aspect of its well-being (its interest) is a sufficient reason for holding some other individual or individuals to be under a duty. As far as I can tell, none of these conditions is inapplicable in principle to groups: a human community may be treated as an individual for certain purposes (vis-à-vis other groups or vis-à-vis the wider society); we should not foreclose on analytical grounds the possibility that a community might have interests of its own which require recognition in moral and political discourse; nor should we rule out the possibility that those interests rise to a level of moral importance that commands recognition by other entities or individuals in the form of duties. I am not saying these conditions are satisfied in fact. I am certainly not saying they are satisfied wherever group rights are claimed. But if there are reasons for opposing talk of group rights in general (or specific claims about group rights), or for insisting that they be reduced to the rights of individual men and women, they are not analytical reasons. Some may want to add to these conditions a further requirement that the entity to which rights are attributed be capable of agency—that is, that it be capable of making claims and exercising choices. But this cannot be ruled out on logical grounds either. We are perfectly familiar with the idea of collective decision, and indeed one of the most commonly invoked group rights—the right to national self-determination—is a right to have decisions by the group made politically effective. True, our best understanding of collective decision is in terms of a function over individual decisions (such as majority-rule in a simple case). But such a function operates as the content of a rule which specifies how collective decisions are made; and that is not at all the same as saying that the collective decision may be reduced to the individual decisions to which the function applies. To say that a group decides by majority-rule is not at all the same as saying that a group decision is nothing but the decisions of a majority of its individual members. Nothing that has been said so far suggests that there are group rights: all I have said is that the possibility cannot be dismissed out of hand. To show that there are group rights, we will have to identify a class of distinct and identifiable communities that it makes sense to treat as individuals for certain purposes; and we will have to show that those communities have interests that are in fact important enough to justify holding other individuals (other groups, or maybe other people) to be under duties, or that certain recognisable duties are appropriately controlled by the decisions of these groups. Only if we show all that—for an actual case—will we have shown that the logically impeccable notion of group rights actually applies to something real. Apart from what I have already said, the remarks about group rights that I present in this paper are not analytic, but practical or pragmatic. I want to consider not the logical question of whether there might be group rights—that, as we have seen, is settled—nor the existential question of whether there are group rights, but the practical consequences of recognising such rights and giving them a place in political discourse and in legal and constitutional arrangements.
Source Publication
Litigating Rights: Perspectives from Domestic and International Law
Source Editors/Authors
Grant Huscroft, Paul Rishworth
Publication Date
2002
Recommended Citation
Waldron, Jeremy, "Taking Group Rights Carefully" (2002). Faculty Chapters. 1623.
https://gretchen.law.nyu.edu/fac-chapt/1623
