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Collective Rights?

Published online by Cambridge University Press:  09 June 2015

Jan Narveson
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Extract

The question addressed in this paper is whether there are any collective rights. I am inclined to answer this in the negative; but the main challenge is to provide a reasonably clear sense to the notion of collective rights. My negative answer will then be defended from a general viewpoint utilizing what we may call a kind of ‘individualism’. Some are inclined these days to reject a priori anything with that label. I shall have something to say later on that inclination. Individualism, as I shall explain, by no means implies that there are no group rights in any sense that may reasonably be given to that term. Very much the contrary. A careful explication is needed.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 4 , Issue 2: Collective Rights , July 1991 , pp. 329 - 345
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1991

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References

This paper was completed at the Philosophy and Social Policy Center of Bowling Green State University, Ohio, during my residency there as Visiting Research Scholar in the fall of 1990. I am grateful to the staff of the Center for making this opportunity available. I am also grateful to the University of Waterloo for permitting me to take advantage of that opportunity.

1. The suggestion is due to Michael McDonald.

2. This analysis is due to Raz, in recent print, in The Morality of Freedom (Oxford: Clarendon Press, 1986) at 166,though I adopt his formulation only because it seems to me a particularly perspicuous way of stating what I have long employed in my own work. It was even used, I find, as far back as myGoogle Scholar The Morality of Freedom Oxford: Clarendon Press, 1967) at 204–05.Google Scholar

3. In the remainder of this essay, I shall use the language appropriate to ‘right to do’, but this is not to be construed as implying the need for a different treatment for rights of ownership. See W. Hohfeld, “Fundamental Legal Conceptions as Applied in Judicial Reasoning” (1916–17) XXVI Yale L.J. 710 at720 for the point that there are no rights ‘in things’. A further sentiment or idea from Hohfeld thatI insist on is that the word ‘right’ is not well used for what some self-styled Hohfeldians have called a ‘liberty right’. Hohfeld’s preferred term was ‘privilege’—as is well known. See Hohfeld, “Some Fundamental Legal Conceptions as Applied to Judicial Reasoning” (1913-14) XXIII Yale LJ. 16 at 34f. IfI have merely no-duty to do something such that some other has no-right that I do it, it is bogus to say that I have any kind of right to do it. To be a right is to be a claim-right; it is to be a basisfor a claim against others to refrain from something or do something in relation to one’s action. If my right to drive a car is compatible morally with your forcibly preventing me from exercising it. then there is no point whatever in speaking of ‘my right’.

4. In, especially. The Libertarian Idea (Philadelphia: Temple University Press, 1989) at 122’30.Google Scholar

5. Michael, McDonald, “Should Communities Have Rights? Reflections on Liberal Individualism,” this issue, at 28.Google ScholarPubMed

6. Ibid.

7. See Michael, Hartney, “Some Confusions Concerning Collective Rights,” this issue, at 305.Google ScholarPubMed

8. I have argued against the view that working people have an inherent right to manage the firms in which they work, as a case in point. See “Democracy and Economic Rights”, forthcoming in (1991) 9 Social Philosophy and Policy.

9. A suggestion of Michael McDonald’s motivated this paragraph. My thanks to him for helping to clarify the point.