Hostname: page-component-cd9895bd7-8ctnn Total loading time: 0 Render date: 2024-12-26T04:39:08.361Z Has data issue: false hasContentIssue false
  • English
  • Français

Bridging the Gap Between Individual and Collective Rights With the Idea of Integrity

Published online by Cambridge University Press:  09 June 2015

Lesley A. Jacobs
Get access

Extract

The very idea of collective rights has for a long time now been regarded with suspicion by moral and political philosophers. In recent years, however, this attitude has become more difficult to sustain, for the language of collective rights has come to dominate some of the most contentious political issues of our day. Consider, for example, the controversy surrounding the alleged injustices suffered by the indigenous peoples of North America. The arguments that best capture the core of these allegations appeal to collective rights. These arguments maintain that the injustices commonly suffered by an indigenous people involve the violation of rights held collectively by them rather than by particular individuals.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 4 , Issue 2: Collective Rights , July 1991 , pp. 375 - 386
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1991

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

The central thesis defended in this paper was sparked by an insightful comment by Mark, Philp on my 1990 OxfordD.Phil, thesis. Rights and Deprivation.Google Scholar I am grateful to G.A. Cohen, David Lloyd-Thomas, Michael McDonald, and Mark Philp for helpful comments on various segments of this paper.

1. Wesley, Hohfeld, Fundamental Legal Conceptions, Cook, Walter W., ed. (Westport, Conn.: Greenwood Press, 1964) at 35–40.Google Scholar

2. Sparrow, R.v. [1990] 3 C.N.L.R. 162.Google Scholar

3. Douglas, Sanders “Indian Hunting and Fishing Rights,” (1974) 38 Saskatchewan Law Review 45 at 49.Google Scholar

4. The implications for liberal democratic theory of collective rights is discussed by Frances Svensson, “Liberal Democracy and Group Rights: The Legacy of Individualism and Its Impact on American Indian Tribes” (1979) 28 Political Studies 421. Svensson fails to make the distinction I have between the two types of collective rights and thus does not appreciate the different sorts of problems each gives rise to.

5. This is evident if one considers the now wide spread practice of characterizing moral rights as antiutilitarian. John Mackie, for example, has written, “the maximizing of utility may turn out to require that [an individual’s] well-being should be sacrificed, without limit, in order to promote that of others. It is this that a rights-based theory is meant to bar.” [See “Rights, Utility, and Universalization” in Frey, R.G. ed., Utility and Rights, (Oxford: Basil Blackwell, 1985) at 87.]Google Scholar This view presupposes that only individuals can be the bearers of rights. Ronald Dworkin, one of the most influential contemporary defenders of the notion of rightsas anti-utilitarian devices, firmly rejects the idea of the community having rights in Taking Rights Seriously, ‘Reply to Critics’ New Impression (London: Duckworth, 1978) at 353–54.Google ScholarPubMed

6. See, for example. Pierre Elliott Trudeau, Towards A Just Society (Markham, Ont.: Viking, 1990) at 364.Google ScholarPubMed

7. See especially Charles, Taylor “What is Human Agency?” in Human Agency and Language, Philosophical Papers I (Cambridge: Cambridge University Press, 1985) at 15–44.Google Scholar

8. The view of human beings as agents in this sense is perhaps most familiar in the context of assuming that individuals have life-plans which guide their choices about what to do in particular situations. It should be stressed that a proponent of the agency concept of rights is not necessarily committed to such a strongly rationalistic portrayal of human beings.

9. This concept of rights enjoys wide currency. Robert, Nozick in Anarchy, State, and Utopia (Oxford: Basil Blackwell, 1974)Google Scholar, appears to subscribe to it For him, rights are “permissions to do something and obligations on others not to interfere”(92). When he explains in chapter three the significance of rights, it is, on at least one reading, in terms of the importance of individuals constructing, choosing, and controlling their lives. Similarly, John, Mackie in “Can There Be a Right-based Moral Theory?” in Waldron, J. ed., Theories of Rights (Oxford: Oxford University Press, 1984) 168 at 175,Google Scholar takes“as central the right of persons progressively to choose how they live.” John, Rawls’s position is more difficult to pinpoint since for him rights are often thought of as legal and not moral. For example, he writes in A Theory of Justice (Oxford: Oxford University Press, 1972)Google Scholar, “Taken together as one scheme, the major institutions define men’s rights and duties and influence their life-prospects, what they can expect to be and how well they can hope to do” (7). This is of course more complicated because of the link between a theory of justice and the institutions in a just society. It is probably accurate to say that what Rawls calls the “basic liberties” are rights in the sense relevant to our discussion. These basic liberties are justified because of their relation to the two “highest interests” of a person. One of these interests is “The capacity for a conception of the good [which] is the capacity to form, to revise, and rationally to pursue such a conception, that is, a conception of what we regard for us as a worthwhile human life.” (“The Basic Liberties and Their Priority”, The Tanner Lectures on Human Values, vol. 3 (Salt Lake City: The University of Utah Press, 1982) at 16.) This capacity seems akin to agency.Google Scholar

10. See especially Bernard, Williams “A Critique of Utilitarianism” in Williams, B. and Smart, J.J.C. eds. Utilitarianism: For and Against (Cambridge: Cambridge University Press, 1973) 77 at 108–18.Google Scholar

11. I intend here an ordinary understanding of what is a commitment. Amartya Sen in a discussion of welfare economics has tried to formulate a precise definition of ‘commitment’ by contrasting it to a ‘sympathy’. A sympathy “corresponds to the case in which the concern for others directly affects one’s welfare.” A commitment does not reflect, according to Sen, a concern about your own welfare; although you think something is wrong, this is not because it affects your welfare. The narrow focus on welfare by Sen fails, in my view, to capture the complex nature of commitments. For example, it fails to capture the common case in which acting on one’s commitments is contrary to what is in one’s best welfare. An illustration of this sort of case is offered below. See Sen, “Rational Fools: A Critique of the Behavioural Foundations of Economic Theory” in Sen, A. ed., Choice. Welfare, and Measurement (Oxford: Basil Blackwell, 1982) at 91“92.Google Scholar

12. McFall, L. “Integrity” (1987) 98 Ethics 5 at 12–13.Google Scholar

13. Explicit defenders of the integrity concept of rights arerare. Occasionally rights as protectors of integrity is acknowledged but not generally given acentral place. See, for example, Jeremy, Waldron “A Rightto do Wrong” (1981) 92 Ethics at 34–35. Loren, Lomasky inPersons. Rights, and the Moral Community (Oxford: Oxford University Press, 1987)Google Scholar has recently developed a view of rights starting from the observation that persons have projects that are important to them. However, he seems to hold to the view that all such projects are chosen, see page 49. This suggests that he is leaning towards an agency concept. Furthermore, when faced with the fact that different persons have different projects, he justifies the claim that they all have the same moral rights by arguing that they all share the value of being project pursuers, see chapter 4.1 find this a very contentious thesis. Hence, below when faced with a similar problem, I suggest the idea of an objective criterion for urgency.

14. The distinction between subjective and objective criterion for the urgency of commitments is modeled after T.M. Scanlon’s distinction between subjective and objective criterion for the urgency of preferences in “Preference and Urgency” (1975) 72 Journal of Philosophy 655 at 656–58.Google ScholarPubMed

14. Determining a list of objective commitments might prove to be a tricky business. The fear is that some group—the majority, for example—might seek to impose their views of what are important commitments on the minority in the name of objectivity. One possible way to avoid this is to hold that an objective list is a matter of those commitments which any rational individual would hold as important. There is a distinct parallel here to the answer John Rawls offers to the problem of what is the proper metric of distributive justice. Rawls, of course, argues that primary goods are the appropriate objective measure of distribution and that primary goods are those means required by any individual to advance his or her conception of the good, regardless of the particular nature of that conception. See A Theory of Justice, supra, note 9 at 93 and “Social Unity and Primary Goods” in Sen, A. & Williams, B. eds, Utilitarianism and Beyond (Cambridge: Cambridge University Press, 1982) 159 at 161.Google Scholar

16. An alternative explanation might be to say that everyone has the same abstract right to integrity but enjoy different derivative rights. What derivative rights you have reflect your identityconferring commitments. (See below for the distinction between abstract and derivative rights.) I think that this alternative explanation is deeply problematic because I suspect that we think everyone has the same derivative rights, not just the same abstract rights. Moreover, this explanation does not deal with the problems of offensive and trivial commitments.

17. I shall not discuss the interesting question of why in turn we should value integrity. For some helpful suggestions, see Williams, , supra, note 10 at 113–18,Google Scholar and Morality: An Introduction to Ethics (Cambridge: Cambridge University Press, 1972) at 87–95.Google Scholar

18. This distinction is composed of elements drawn from Dworkin–s distinction between abstract and concrete rights in Taking Rights Seriously, supra, note 5 at 93-94, 273-74, and Joseph, Raz’s distinction between core and derivative rights in The Morality of Freedom (Oxford: Clarendon Press, 1986) at 168–70.Google Scholar

19. Thomson, Judith Jarvis “The Right to Privacy” in Parent, W. ed., Rights, Restitution, and Risk (Cambridge, Mass.: Harvard University Press, 1986) at 133–34.Google Scholar

20. For a clear statement of this view, see Douglas, Sanders “Collective Rights” (UBC Faculty of Law, November 1990) [unpublished] at 5ff.Google Scholar

21. See Michael McDonald’s paper “Should Communities Have Rights? Reflections on Liberal Individualism” in this issue for a similar point.

22. See Raz, supra, note 18 especially at 202-03,247.