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Should Communities Have Rights? Reflections on Liberal Individualism

Published online by Cambridge University Press:  09 June 2015

Michael McDonald
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The central question for this paper is whether communities should have rights. This is a question that I will consider in a certain ideological or normative context, namely, that of liberalism. There are other contexts in which the question could be asked; for in non-liberal ideological settings there have sometimes been clear positive answers to the question of whether minority communities should have rights. Thus, the Ottoman Empire’s millet system provided a system of group rights. Various other autocratic states like Czarist Russia have also provided at least some de facto if not de jure protection for various minority groups. One might even argue that various nineteenth and twentieth century European colonial regimes protected to some extent minority ethnic rights. On paper, Marxist governments in the Soviet Union and Yugoslavia have made provision for various sorts of group rights; but as current events attest, neither Moscow nor Belgrade is very comfortable with the vigorous exercise of such rights. Indeed, in both the origins and the consequences of the First and Second World Wars, group rights played an extensive role.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 4 , Issue 2: Collective Rights , July 1991 , pp. 217 - 237
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Copyright © Canadian Journal of Law and Jurisprudence 1991

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References

An earlier version of this paper also appears in Human Rights in Cross-Cultural Perspective, Abdullahi Ahmed An-Na’im, ed. (Philadelphia: University of Pennsylvania Press, 1990).Google ScholarPubMed Reprinted by permission of the University of Pennsylvania Press.

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2. Ibid, at 351-53.

3. James, Fawcett The International Protection of Human Rights (London: Minority Rights Group, 1979).Google ScholarPubMed

4. Michael, McDonald “Questions About Collective Rights”, in Ducharme, T. ed.. Language and the Slate: the Law and Politics of Identity (Edmonton: University of Alberta Press,Google Scholar forthcoming).

5. This is not to say that every collective right necessarily advances a collective interest and is collectively exercised. I will argue below that some collective rights can be individually exercised and that some individual interests can be best advanced by the collective exercise of a right.

6. Honoré, A.M. “Groups, Laws, and Obedience”, in Simpson, A.W.B. ed., Oxford Essays in Jurisprudence (Oxford: Oxford University Press, 1973) at 2;Google Scholar Honoré, A.M. “What is a Group’?”, (1975)Google Scholar Archiv für Rechts-und Sozialphilosophie, BD.lxi/2 at 168.

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15. Allen Buchanan makes this point in his liberal response to communitarian criticisms of liberalism by distinguishing between justificatory frameworks and political theses [“Assessing the Communitarian Critique of Liberalism”, supra, note 11, 852 at 853-56]. In effect, he argues that “the most plausible communitarian challenge to the liberal political thesis” is that sometimes the priority given to individual rights can be overridden to “protect the goods of community orto serve community values” [ibid. at 855], but that by and large the moderate communitarian will on reflection endorse the liberal political thesis.

16. Ibid, at 854.

17. Ibid at 855.

18. Kymlicka argues that both Rawls and Dworkin can be re-interpreted to take into account communitarian elements in the formation of individual autonomy [William, Kymlicka “Liberal Individualism and Liberal Neutrality” (1989) 99 Ethics 883 at 899].Google Scholar I discuss Kymlicka’s liberal argument for collective rights at the end of this paper.

19. Joseph, Raz The Morality of Freedom (Oxford: Clarendon Press, 1986) at 193–216.Google Scholar

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21. Ronald, Dworkin A Matter of Principle (Cambridge, Mass.: Harvard University Press, 1985) at 191–204.Google Scholar

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25. Primary goods are perforce social in the sense of requiring a social context. If people lived like hermits, there would be no value for social status.

26. Henry, Sidgwick The Elements of Politics, 3rd ed. (London: Macmillan, 1908) at 39–43.Google Scholar

27. Joseph, Raz supra, note 19 at 369.Google Scholar

28. Ibid. at 308.

29. John, Rawls supra, note 24 at 13942.Google Scholar

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31. David, Gaulhier Morals By Agreement (Oxford: Clarendon Press, 1986) at 158–60.Google Scholar

32. Joseph, Raz supra, note 19 at 373.Google Scholar

33. Michael, McDonald “Ideology and Morality in Hard Times”, in Wesley, Cragg ed., Contemporary Moral Issues, 2d ed. (Toronto: McGraw Hill-Ryerson, 1987) at 590.Google Scholar

34. See Narveson, Jan The Libertarian Idea (Philadelphia: Temple University Press, 1988)Google Scholar chs. 2-8 for a discussion of these issues from a libertarian perspective.

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37. Here see Joseph Pestieau’s contribution to this issue.

38. Linda, Medcalfe Law and Identity: Lawyers, Native Americans, and Legal Practice (Beverley Hills, Calif.: Sage Publications, 1978).Google Scholar

39. 140 D.L.R. (3rd) 33 at 64-65. For a detailed discussion of this case, see my paper, “Collective Rights and Tyranny”, Pouvoir et Tyrannie, Guy, Lafrance ed., (Ottawa: University of Ottawa Press, 1986) at 115.Google Scholar

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41. Kymlicka. supra, note 18 at 903.

42. I would recall here that my earlier claim that there is more to being a group than being a collection of similarly situated individuals; there must also be a shared understanding. This has, I believe, important implications for selective amelioration under s. 15.2. If a government is genuinely concerned with the welfare of a group like a native band it must move to meet collective needs and not just the needs of individual band members.

43. McDonald, supra, note 4.

44. Ronald, Dworkin Taking Rights Seriously (London: Duckworth Press, 1977) at 84–88, 123-30.Google Scholar

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47. I borrowed the term “cosmopolitanism” from Stevenson, J. “Canadian Philosophy from a Cosmopolitan Point of View” (1986) 25 Dialogue 17.Google Scholar

48. Paul, Sieghart supra, note 40 at 161–68.Google Scholar

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51. “Assessing the Communitarian Critique of Liberalism”, supra, note 11 at 862.Google Scholar

52. This does not preclude groups from having a say by setting limits to entrance and exit conditions, which are compatible with liberal political theses.

53. “Assessing the Communitarian Critique of Liberalism”, supra, note 11 at 863.Google Scholar

54. Benjamin, Whitaker The Fourth World, Victims of Group Oppression (New York: Schocken Books. 1973).Google Scholar

55. See Ford, v. Québec (Attorney-General), supra, note 36 at 627.Google Scholar

56. Even religious affiliation is pictured by many believers as in the first instance a matter of grace rather than of choice. That is, one does not choose or select a religious affiliation, but one is chosen for it. Of course, one can renounce the religion, leave the flock. But the cost may be staggeringly high for some, not because others make it difficult for them to go, but because die believer’s identity is bound up with the religious affiliation.

57. The same failure is also evident in two other arguments advanced by Buchanan. One is that group rights are likely to involve a hierarchical decision-procedure which is open to misuse by leaders. The other is that group rights are likely to encourage paternalism on the part of leaders.

58. The classic 1904 case of Free Church of Scotland v. Overtoun, [1904] A.C. 515, is interesting in this regard. Roughly the suit involved a dispute about the ownership of Church property which arose when the Free Church of Scotland decided to form a union with the United Presbyterian Church in 1900. The Free Church had been established in 1843 in the main on the basis of the 1647 Westminster Confession of Faith. A small minority viewed the changes brought about in 1900 to effect union as a heretical deviation from the Westminster Confession and argued that they as the true guardians of the faith should keep the Free Church’s extensive properties. The House of Lords reversed die earlier decision by holding that the majority had no power to vary the Church’s doctrine and awarded the property to the minority. The decision was later reversed by an act of Parliament. Fuller has some interesting comments to offer on similar cases. [Supra, note 46 at 8-11].

59. “Assessing the Communitarian Critique of Liberalism”, supra, note 11 at 863.Google Scholar

60. It is worth pointing out the obvious: groups can be non-hierarchical and non-paternalistic. As 1 understand it, decision-making procedures amongst native groups are far more participatory and inclusive than are the decision procedures typical of Western democracies, political parties, corporations, or even labour unions.

61. Pierre, Carignan “De la notion de droit collectif et de son application en matiere scolaire au Quebec” (1984) 18 La Revue Juridique Thémis 1 at 91–92.Google Scholar

62. Supra, note 39 at 122; Réaume, D. “Individuals, Groups and Rights to Public Goods” (1988) 38 University of Toronto Law Journal 1 at 26.Google Scholar

63. As noted earlier, this is one of the central arguments Mill and other nineteenth century utilitarians brought against paternalism.

64. It is conceivable that this process whereby individual rights-holders transfer their rights to groups could become so extensive that over time the only significant rights-holders remaining would be large groups. So, tongue in cheek, one might tell a story that reverses the process Nozick described in his tale about Wilt Chamberlain, whereby individuals freely give up their rights to the state or other powerful types of association; supra, note 30 at 161-63.

65. In Law’s Empire, Ronald Dworkin offers a liberal characterization of communities in terms of what he labels associative obligations; Ronald, Dworkin Law’s Empire (Cambridge, Mass.: Harvard University Press, 1985) at 206–08.Google Scholar

66. Van Dyke notes that Rousseau held this view. Van Dyke, V. supra, note 1 at 347.Google Scholar

67. See “Views of ihe Human Rights Committee under Article 5(4) of the Optional Protocol of the International Covenant on Civil and Political Rights” (1982)Google Scholar 1 Canadian Native Law Reporter 1 for the 1977 report of the United Nations Human Rights Commission which investigated Lovelace’s complaints.

68. MacCormick, N. Legal Right and Social Democracy: Essays in Legal and Political Philosophy (Oxford: Oxford University Press, 1982) at 261.Google Scholar

69. From Milton, Gordon “Toward a General Theory of Racial and Ethnic Group Relations” in Nathan, Glazer & Daniel, Moynihan eds, Ethnicity: Theory and Experience (Cambridge, Mass: Harvard University Press, 1975) 84 at 105.Google Scholar

70. Kymlicka, W. supra, note 18 at 903.Google Scholar

71. Réaume’s identification of language and culture as participatory goods provides an excellent reason for regarding these as essentially shared or collective interests [D. Réaume, supra, note 62 at 9-13]. Participatory goods are those in which the “the good is the participation” [ibid. 1 at 10]. In my view, the participatory nature of language and culture makes it appropriate that there be significant community involvement and direction in their provision, particularly through community-run cultural, linguistic, and educational institutions.

72. Supra, note 50 at 658-60.

73. The worry I have here centres on non-liberal, as opposed to illiberal groups. I would suggest that illiberal groups may secure the assent of members in ways that violate both individual and collective rights. For I have argued that collective rights can only be attributed to groups on the basis of their having a group-constituting understanding. This in my view rules out coercion, force and fraud as means of generating a genuine shared understanding; supra, note 8.

74. Wisconsin v. Yoder, [1972] 406 U.S. 205. Ronald Garet also discusses this case; Garet, R. “Communality and Existence: The Rights of Groups” (1983) 56 Southern California Law Review 1001.Google Scholar For a recent and insightful discussion of collective rights, see Darlene M., Johnston “Native Rights as Collective Rights: A Question of Group Self-Preservation” (1988) II The Canadian Journal of Law and Jurisprudence 19.Google Scholar