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Some Confusions Concerning Collective Rights

Published online by Cambridge University Press:  09 June 2015

Michael Hartney
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Extract

In recent years, there has been an increased interest in considering collectivities to be moral agents and holders of collective rights. Peter French and others have argued that corporations are agents and bear moral responsibility for their actions. Virginia Held makes similar claims about nations. She also believes that we have “obligations to humanity collectively, to bring about its continued existence, and perhaps also to such lesser groups within it as our fellow nationals or conceivably the ethnic group to which we belong or the family or clan of which we are a member” and that in some of these cases—humanity, nations—the obligation correlates with a collective right. Perhaps, the area where claims of collective rights have aroused the greatest interest is that of the alleged rights of minority groups within some larger political unit. Thus, in recent political debate in Canada, collective rights have been ascribed or invoked in relation to Quebec and to aboriginal peoples. It is with this last group of alleged collective rights that I will be particularly concerned in this paper.

Type
Research Article
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Canadian Journal of Law & Jurisprudence , Volume 4 , Issue 2: Collective Rights , July 1991 , pp. 293 - 314
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1991

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References

Earlier versions of this paper were read at the annual conference of the Canadian section of the International Association for Philosophy of Law and Social Philosophy, and at the Universities of Waterloo and Western Ontario. I profited from comments made on these occasions, as well as at the Vancouver seminar on collective rights organized by the Network on the Constitution in April 1991.

1. French, P.A., “The Corporation as a Moral Person” (1979) 16 American Philosophical Quarterly 297;Google Scholar “Crowds and Corporations” (1982) 19 American Philosophical Quarterly 271;Google Scholar Collective and Corporate Responsibility (New York: Columbia Univ. Press, 1984);Google Scholar “Corporate Moral Agency”, in Hoffman, W.M. & Moore, J.M., eds, Business Ethics: Readings and Cases in Corporate Morality (New York: McGraw-Hill, 1984) 163.Google Scholar

2. Held, V., Rights and Goods (Chicago and London: University of Chicago Press, 1984) at 255.Google Scholar

3. Ibid, at 244.

4. For instance, White, A., Rights (Oxford: Clarendon Press, 1984);Google Scholar Waldron, J., introduction to Waldron, J., ed., Theories of Rights (Oxford: Oxford University Press, 1984) 1;Google Scholar Nickel, J., Making Sense of Human Rights (Berkeley and Los Angeles: University of California Press, 1987);Google Scholar Thomson, J.J., The Realm of Rights (Cambridge, Mass. and London: Harvard University Press, 1990).Google Scholar

5. Raz, J., The Morality of Freedom (Oxford: Clarendon Press, 1986) at 207–09.Google Scholar

6. Sumner, L.W.. The Moral Foundation of Rights (Oxford: Clarendon Press, 1987) at 209.Google Scholar

7. McDonald, M., “Collective Rights and Tyranny” (1986) 56 University of Ottawa Quarterly 115 at 120.Google Scholar

8. Mcdonald, M., “Should Communities Have Rights? Reflections on Liberal Individualism” in this volume at 219.Google Scholar Others use a different terminology: see examples in Johnston, D.M., “Native Rights as Collective Rights: A Question of Croup Self-Preservation” (1989) II Canadian Journal of Law and Jurisprudence 19 at 22–24.Google Scholar

9. In certain countries, ethnicity can be not only an ethnological but also a legal concept. In Canada, there is at least one situation in which one can choose to change one’s legal ethnicity: one can become legally an aboriginal by marrying an aboriginal.

10. The term ‘value-individualism’ here is to be distinguished from what Raz calls ‘moral individualism’ (Raz, supra, note 5 at 198), which is the view that collective goods can have only instrumental value. See pp. 200–01 of The Morality of Freedom for the distinctions Raz draws between three different categories of intrinsically valuable things.

11. Cf. McDonald, supra, note 8 at 236: “This, however should not lead us to think that collective autonomy is valuable only as a means of enhancing individual autonomy. On my view collective autonomy, like individual autonomy, is valuable in its own right; hence, one should not be valued simply as a means to the other.” Is this a criticism of what Raz calls moral individualism, or is McDonald attributing ultimate value to groups?

12. See Raz, supra, note 5 at 198–99; Réaume, D., “Individuals, Groups, and Rights to Public Goods” (1988) 38 University of Toronto Law Journal 1.Google Scholar

13. Réaume, ibid, at 10.

14. Some authors use the term “collective interest” to refer, not to an interest of a collective entity, but to an interest [of individuals] in a collective good. E.g., “The interests that are protected are inherently collective or social interests, in particular the interest that human beings have in belonging to nurturing, identifying collective groups”, McDonald, supra, note 8 at 229. This can be a source of confusion.

15. Réaume, supra, note 12 at 11.

16. Ibid, at 24.

17. Note that there are two ways in which a group can cease to exist: if its members cease to exist, and if its members cease to belong to it. The moral implications of each of these two ways are different, and so we should be wary of comparing the demise of a group to the demise of an individual.

18. M. McDonald (supra, note 7 at 120–21) makes the following point about the claim that the beneficiaries of the right to minority language education are the individuals who “sit in the classroom”:

That the children of a linguistic minority sit in the classroom is certainly true, but it does not of necessity follow that the benefits derived from their education accrue to them rather than to their linguistic collectivity. Imagine, for example, that these particular children would do better individually through linguistic assimilation than by stubbornly maintaining their mother tongue. Yet their assimilation might well involve the demise of that linguistic collectivity in that area or even the world.

Is the suggestion here that the “linguistic collectivity” can have an interest over and above the aggregate interest of all of its members? Or is it simply (and uncontroversially) that the interests of some of the members of the group can be at odds with the aggregate interest of the group?

19. [1984] 2 S.CR. 575 at 598.

20. Contributors to the debate often argue for “collective rights” without qualification, or shift from moral rights to legal rights in the course of the discussion. For instance: M. McDonald, supra, note 8; D. M. Johnston, supra, note 8.

21. This docs noi mean that every utterance by a legal authority is authoritative; it is so only if it is not rejected by some higher authority.

22. Hohfeld, W.N., Fundamental Legal Conceptions (New Haven: Yale University Press, 1919).Google Scholar

23. In the 1902 edition of his Jurisprudence, Salmond had already drawn most of the Hohfeldian distinctions. Perhaps it is time he be given some credit for this important conceptual work.

24. It is one of the weaknesses of the Hohfeldian analysis of legal rights that all duties must correlate with rights and therefore must be owed to someone. The same failing characterizes Carignan’s paper on collective rights, where the need to find correlates for all sorts of legal duties causes the author to ascribe all sorts of collective rights to society or to the state: Carignan, P., “De la notion de droit collectif et de son application en matiere scolaire au Québec” (1984) 18 Revue juridique Thémis 1.Google Scholar

25. The difference between the two expressions is even more striking in French, where there is a difference not only in the preposition but also in the use of the article: “avoir droit à quelque chose”, “avoir le droit de faire ceci”.

26. Dworkin, R.. Taking Rights Seriously (London: Duckworth, 1977) at 188ff.Google Scholar

27. Many philosophers reject the idea that “the right to do something” is a bare liberty, and insist that for there to be a right, there must be something more, such as the protection of this liberty (i.e. a duly on others not to interfere). E.g., Hart, H.L.A. “Are There Any Natural Rights?” in Waldron, J., ed.. Theories of Rights (Oxford: Oxford University Press, 1984) 77 at 87, n. 14;Google Scholar Feinberg, J., Social Philosophy (Englewood Cliffs: Prentice-Hall, 1973) at 58;Google Scholar Sumner, supra, note 6 at 35. If these claims are meant to reflect ordinary usage, then they are clearly wrong. It is certainly true that one can always interpret (often with considerable plausibility) a person’s statement that “A has the right to do x” to mean more than “It is not wrong for A to do x”, but it does not follow that this is what most people actually mean by it. And the best evidence that this is not what most people mean by it is that the negative use of the right-to-do terminology—i.e., the denial that A has the right to do x—cannot plausibly be interpreted as a statement about other people’s duties: “you have no right to do x” simply means “it is wrong for you to do x”. If this is true of negative right-to-do statements, then it is highly likely that people sometimes use positive right-to-do statements in the same way. But of course philosophers who resist the idea that ‘the right to do something’ can be nothing more than a bare liberty, may not be appealing to ordinary usage, but proposing to reform it. They may believe that the only proper or useful or fruitful use of the term is to refer to a claim-right. Hohfeld of course was of the same opinion.

28. Sumner, supra, note 6 at 45.

29. It has been traditional to say that there are two interpretations of a right: for one school (the Will or Choice view), the core-idea of a right is that of a protected choice, while for the other (the Interests or Benefit view), the core-idea is that of a protected interest or benefit. These two views can be reconciled if one recognizes that autonomy qr possibility of choice is a good, and that it is in one’s interest (in the broad sense that it contributes to one’s well-being) to have such a possibility.

30. Dworkin, supra, note 26 at xi.

31. Raz, supra, note 5 at 166.

32. Dworkin, supra, note 26 at 194.

33. The concept of a collective right can be used in two ways. One is to argue for certain political or legal initiatives: we could call this the justificatory use of the term, and it is characteristic of the moral context. The other use is to explain the present state of the law: legal authorities confer rights without bothering about the theoretical questions implied by their activity, and the theorist then arrives on the scene and explains what has gone on as the conferral of a right on a group collectively rather than on discrete individuals.

34. For instance, Carignan, supra, note 24; Van Dyke, V., “Collective Entities and Moral Rights: Problems in Liberal-Democratic Thought” (1982) 44 Journal of Politics 21.CrossRefGoogle Scholar

35. It should also be pointed out that a legal corporation need not involve more than one person (at any one time): such is the corporation sole of English law, which is usually an office held successively by a number of persons. Perhaps the corporation sole could be interpreted as a diachronous rather than a synchronous collectivity, i.e., a collectivity over time, but this does not appear to be very promising since the various members of this “collectivity” never act collectively, and the interaction among the members goes in only one direction. Nevertheless, this example does raise interesting questions about the diachronous character of other collectivities.

36. Some of the debates about collective rights sans plus are no doubt about questions of legal technique, e.g., Buchanan, A., “Assessing the Communitarian Critique of Liberalism” (1989) 99 Ethics 856 at 862ff,Google Scholar and McDonald, supra, note 8 at 229ff.

37. Whether such a consideration has sufficient moral force to outweigh an individual’s autonomy rights is a substantive question I do not address.

38. Garet, R., “Communality and Existence: The Rights of Groups” (1983) 56 Southern California Law Review 1001 at 1038.Google Scholar

39. Raz, supra, note 5 at 198–203.

40. Réaume, supra, note 12 at 6.

41. Ibid. at 7–13.

42. This is the principle explicitly argued for by counsel for the Quebec government in Attorney-General of Quebec v. Quebec Association of Protestant School Boards, discussed below at note 52. A number of legal writers define collective (or group) rights in terms of the protection of “group interests” without indicating clearly whether they are using the latter term strictly or loosely: e.g., Magnet, J.E., “Collective Rights, Cultural Autonomy and the Canadian State” (1986) 32 McGill Law Journal 170;Google Scholar Morton, F.L., “Group Rights versus Individual Rights in the Charter: the Special Cases of Natives and the Quebecois” in Nevitte, N. & Romberg, A., eds. Minorities and the Canadian State (Oakville, Ont.: Mosaic Press, 1985) 71.Google Scholar

43. This principle has been invoked (or sometimes tacitly assumed) by a number of writers on collective legal rights: e.g., Dinstein, Y., “Collective Human Rights of Peoples and Minorities” (1976) 25 International and Comparative Law Quarterly 102 at 115.CrossRefGoogle Scholar On the other hand, it was rejected by Justice Mclntyre of the Supreme Court of Canada in Reference re Public Service Employee Relations Act, [1987] 1 S.C.R. 313 at 397.

44. Some of the legal writers cited earlier (note 42) as defending the view that a right inheres in a group if its purpose is to serve the interest of that group, may in fact have been defending the weaker thesis that a right will be called “collective” if its purpose is to serve the interest of a group.

45. “This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians”.

46. Tarnopolsky, W.S., “The Equality Rights”, in Tarnopolsky, W.S. & Beaudoin, G.-A.. eds. The Canadian Charter of Rights and Freedoms: Commentary (Toronto: Carswell, 1982) 395 at 437–39.Google Scholar

47. (1986) 53 O.R. (2nd) 513.

48. Beaudoin, G.-A. & Tarnopolsky, W.S., eds, La charte canadienne des droits et liberiés (Montréal: Wilson et Lafleur/Sorej, 1982) at 553.Google Scholar

49. E.g., Lebel, M., “Les droits linguistiques et la Charte canadienne des droits et libertés” (1983) 18 Les cahiers de l’ACFAS 31 at 48.Google Scholar

50. In Edwards Books and Art Lid. v. the Queen, [1986] 2 S.C.R. 713 at 808–9, Justice Wilson of the Supreme Court of Canada invokes Tarnopolsky’s concept when she states that, in allowing merchants who close on Saturday for religious reasons to open on Sunday, the Ontario statute prohibiting Sunday shopping grants a group right to the merchants who keep the Sabbath on Saturday.

51. Carignan, supra, note 24, has a particularly luxuriant classification of collective [legal] rights, which commits most of the sins denounced in the present paper:

  • 1.

    1. Rights vested in collective entities:

  • A.

    A. In the whole of society

  • B.

    B. In groups within society:

  • 1.

    1. Incorporated groups

  • 2.

    2. Unincorporated groups

  • C.

    C. In groups through their members.

  • 2.

    2. Rights which can be implemented only collectively:

  • A.

    A. Which can be exercised only collectively

  • B.

    B. Which can be enforced only collectively.

52. [1982] C.S. 673; 140 D.L.R. (3rd) 33.

53. This “weak” concept of a collective right is completely at odds with the more usual concept invoked in debates about language. McDonald appears not to have noticed the fact since he cites Mr. Justice Deschenes’ criticism of this concept as an instance of “outright hostility to all group rights”: McDonald, supra, note 8 at 226.