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Do We Have A Right To Common Goods?

Published online by Cambridge University Press:  09 June 2015

Andrei Marmor
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Extract

The essay explores the question of whether people can have a right to common goods, such as the flourishing of their culture or national heritage. It first explains the concept of a common good and its distinction from other similar concepts, such as collective and public goods. Second, it argues that individuals ought not to have a right to common goods, unless a particular distributive principle applies to the good in question, and then the individual's right is the right to a certain share in that common good. Finally, the essay explores the question of how this analysis applies to group-rights, with respect to other groups and to members of the group itself.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 14 , Issue 2 , July 2001 , pp. 213 - 225
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2001

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References

1. See Raz, , The Morality of Freedom (Oxford: Clarendon Press, 1986) at ch. 7Google Scholar and also, Ethics in the Public Domain (Oxford: Clarendon Press, 1994) at ch. 1.Google ScholarPubMed

2. Not always: we do tend to assume that parents, for example, have a duty to love their children.

3. There are two main types of collective action, and I intend to include here both of them: First, there are those cases in which the production of the good simply requires coordination amongst numerous participants. Second, there are those cases in which the creation of the good by a number of individuals requires more than simple coordination because participants would have a strong incentive to defect, free-ride, etc. Prisoners' Dilemma situations form the paradigmatic example of this latter category. The main difference between these two types of collective action problems consists in the fact that in the second category some form of sanction is needed to solve the collective action problem, whereas in simple cases of coordination, it is typically enough to secure common knowledge of one course of action everybody can pursue. On the difference between these two types of collective action problems I have elaborated in my Positive Law and Objective Values (Oxford: Oxford University Press, 2001) at ch. 2.Google Scholar

4. Nonexcludability is Raz's main characterization of public goods. See his “Right-based Moralities” in Waldron, J., ed., Theories of Rights (Oxford: Oxford University Press, 1984) 182 Google Scholar; however, the distinctions I mention here between collective, public, and common goods, more or less follows the insights of Réaume, Denise, “Individuals, Groups, and Rights to Public Goods” (1988) 38 U.T.L.J. 1Google Scholar and Waldron, Jeremy, Liberal Rights (Cambridge: Cambridge University Press, 1993) at ch. 14.Google Scholar

5. Réaume, , ibid. at 12.Google Scholar

6. See Waldron, , supra note 4 at 355 Google Scholar and Réaume, , ibid. at 10-11.Google Scholar

7. As a possible example of a common good which is not produced commonly I hesitate to mention the example of the arts, such as painting or literature. In some respects it is true that art is typically created by individual achievements, and the communal aspect of its production is at least not always on the surface. But we should not ignore the fact that the creation of art is very genredependent, and genres are common goods.

8. See Réaume, , supra note 4 at 11.Google Scholar Unlike Réaume, however, I am somewhat less certain that this is an essential element of common goods. Some common goods do allow for a division of labor between producers and consumers. To a considerable extent, we can distinguish, for example, between producers and consumers of literature.

9. The fact that the production of a good requires concerted action on a large scale is typically a good reason to impose the duty of the production of the good on institutions, such as the state, or some other public agency.

10. See Raz, , Ethics in the Public Domain, supra note I at ch. 1.Google Scholar Raz also claims, however, that such public good externalities also tend to be non-competitive in their nature. I have expressed my doubts about this optimism in my “On the Limits of Rights” (1997) 16 Law and Phil. 1.Google ScholarPubMed

11. Waldron, , supra note 4 at 359.Google Scholar Emphasis mine.

12. I think that Réaume, (in “Individuals, Groups, and Rights to Public Goods” supra note 4 at 9 and 11)Google Scholar makes a very similar point to Waldron's, which I find flawed for the same reason. Cf. Harel, Alon, “Review Essay: Free Speech Revisionism: Doctrinal and Philosophical Challenges” (1994) 74 Boston Univ. L. Rev. 687Google Scholar and Hartney, Michael, “Some Confusions Concerning Collective Rights” (1991) 4 C.J.L.J. 293 at 298-300.Google Scholar

13. Waldron, , supra note 4 at 355.Google Scholar

14. I say that common goods typically involve such a normative aspect just in order to be on the safe side. I find it very difficult to think of common goods which can be sustained and enjoyed as goods without there being certain values which are shared by most members of the relevant community. As Wittgenstein famously showed, even the use of a natural language necessarily involves “agreement in judgment” shared by the community of speakers. But again, I might be wrong about the generalization, in which case, I readily admit that my argument is restricted to those goods which require the members of the community to share the values which make it a common good.

15. Réaume, , supra note 4 at 13.Google Scholar

16. It may be worth noting that these things are profoundly affected by culture.

17. Perhaps in both of these points Réaume could rely on something like the familiar thesis that ‘ought implies can’. Note, however, that the ‘ought implies can’ thesis is a moral one. It is not a conceptual truth. Some philosophers believe that one may have a duty to X, even if one cannot actually discharge the duty under the circumstances. Perhaps they are wrong, but if so, their mistake is about substantive morality, not about the conceptual framework of duties discourse.

18. Réaume, raises a similar point about equality of opportunity in “Individuals, Groups, and Rights to Public Goods” supra note 4 at 10.Google Scholar

19. To be sure, I am not trying to suggest that any instance of exclusion is wrong. To some extent, groups need to define themselves by certain forms of exclusion, and I do not want to imply that any group-self-determination is necessarily bad.

20. The right to democracy is the example Alon Harel used in order to show, contra Waldron, that it makes sense to speak of rights to common goods. See Harel, , “Revisionist Theories of Rights: An Unwelcome Defense” (1998) 11 C.J.L.J. 227 at 241.Google Scholar

21. See, for example, Kymlicka, Will, Multicultural Citizenship (Oxford: Clarendon Press, 1995) at 35.Google Scholar

22. I have expressed my doubts about the special rights of minority cultures in my “Equality and Minority Cultures” (2000) 3 Democratic Culture 149.Google Scholar

23. I rely here on the main argument of Kymlicka for rights of ethic-cultural minorities, which I take to be the fairly standard stance of liberals who claim for the recognition of such rights. See books by Kymlicka, Will, Liberalism, Community, and Culture (Oxford: Clarendon Press, 1989) and Multicultural Citizenship, supra note 21.Google Scholar

24. A comparison might help here. Consider the Yiddish language and culture, which is, practically, almost extinct. Since there isn't any particular distinct minority in any liberal country that actually practices the Yiddish culture (as opposed to merely speaking the language), it is pretty clear that Yiddish does not deserve the kind of constitutional protection Kymlicka's arguments espouse for, e.g., aboriginal minorities. If there is any right to Yiddish, it would have to be a right to a common good, that is, to the culture itself. My argument entails that under these circumstances, nobody has a right to the Yiddish culture.

25. See, for example, Kukathas, Chandran, “Are There Any Cultural Rights?” in Kymlicka, W., ed., The Rights of Minority Cultures (Oxford: Oxford University Press, 1995) 228.Google Scholar

26. The overall considerations about the desirability of such practices are much more complex, of course. For instance, the question of feasible alternatives is often crucial.

27. This is a very crucial element of the condition of voluntary membership. Most social groups we find ourselves in we do not actually join voluntarily. The costs of exit are crucial in determining whether continued membership is voluntary or not. People can leave, for example, the national group they belong to. But the fact that such an exit from a national group tends to be very costly, renders one's continued membership highly involuntary.

28. In one sense, pointed out to me by Chaim Gans, the example is problematic: It is arguable that the values of the academia are not only the business of the academic circles, as it may well be in the interests of outsiders, that is, the community at large, that the academic institutions share certain values and instantiate them. This may well be true of some other quasi-voluntary social groups as well. The question to what extent such external interests should count is a very difficult one, but I cannot go into the details here.