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The Problem of Collective Moral Rights

Published online by Cambridge University Press:  09 June 2015

J. Angelo Corlett
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Extract

Despite the neglect by political liberals in the distant and recent past to take collective rights seriously, the problem of collective rights is beginning to capture the attention of an increasing number of philosophers. This new concern for collective rights seems to be “the result of a recent interest in the value of communities.” I shall clarify and assess some of the chief categories of collective moral rights talk and proffer some criteria of adequacy for a philosophical analysis of collective moral rights. Finally, I set forth and defend an analysis of justified collective moral rights.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 7 , Issue 2 , July 1994 , pp. 237 - 259
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Copyright © Canadian Journal of Law and Jurisprudence 1994

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References

I am very grateful to Joel Feinberg and Keith Lehrer for incisive comments on earlier drafts of this paper.

1. See Benson, Peter “The Priority of Abstract Right, Constructivism, and the Possibility of Collective Rights in Hegel’s Legal Philosophy” (1991) 4 Can. J. of L. & Juris. 257–91;CrossRefGoogle Scholar Berent, Moshe “Collective Rights and the Ancient Community” (1991) 4 Can. J. of L. & Juris. 387–99;CrossRefGoogle Scholar Brett, Nathan “Language Laws and Collective Rights” (1991) 4 Can. J. of L. & Juris. 347–60;CrossRefGoogle Scholar Buchanan, Allen E. Secession: The Morality of Political Divorce From Fort Sumter to Lithuania and Quebec (Boulder: Westview Press, 1991);Google Scholar Carter, A. “On Individualism, Collectivism, and Interrelationism” (1990) 31 Heythrop Journal 23–38;CrossRefGoogle Scholar Corle, J. Angelo “The Right to Civil Disobedience and the Right to Secede” (1992) 30 The Southern J. of Phil. 19–28;CrossRefGoogle Scholar George, R.P. “Individual Rights, Collective Interests, Public Law, and American Politics” (1989) 8 L. & Phil. 245–61;CrossRefGoogle Scholar Gibson, Mary Workers’ Rights (Totowa: Rowman & Allanheld, 1983);Google Scholar Green, Leslie “”Two Views of Collective Rights” (1991) 4 Can. J. of L. & Juris. 315–27;CrossRefGoogle Scholar Hartney, Michael “Some Confusions Concerning Collective Rights” (1991) 4 Can. J. of L. & Juris. 293–314;Google Scholar Jacobs, Lesley A. “Bridging the Gap Between Individual and Collective Rights With the Idea of Integrity” (1991) 4 Can. J. of L. & Juris. 375–86;CrossRefGoogle Scholar Kernohan, A. “Rawls and the Collective Ownership of Natural Abilities” (1990) 20 Can. J. of Phil. 19–28;CrossRefGoogle Scholar Kymlicka, Will “Liberalism and the Politicization of Ethnicity” (1991) 4 Can. J. of L. & Juris. 239–56;CrossRefGoogle Scholar Macdonald, I. “Group Rights” (1989) 18 Philosophical Papers 117–36;CrossRefGoogle Scholar McDonald, Michael “Should Communities Have Rights? Reflections on Liberal Individualism” (1991) 4 Can. J. of L. & Juris. 217–37;CrossRefGoogle Scholar Margalit, Avishai & Raz, Joseph “National Self-Determination” (1990) 87 J. of Phil. 439–61;CrossRefGoogle Scholar May, L. “Corporate Property Rights” (1986) 5 J. of Bus. Ethics 225–32;CrossRefGoogle Scholar Narveson, Jan “Collective Rights?” (1991) 4 Can. J. of L. & Juris. 329–45;CrossRefGoogle Scholar Pestieau, Joseph “Minority Rights: Caught Between Individual Rights and People’s Rights” (1991) 4 Can. J. of L. & Juris. 361–73;CrossRefGoogle Scholar Rafalko, Robert J. “Corporate Punishment: A Proposal” (1989) 8 J. of Bus. Ethics 917–28;CrossRefGoogle Scholar Shapard, Leslie R. “Group Rights” (1990) 4 Publ. Affairs Quart. 299–308;Google Scholar Simon, R.L. “Rights, Groups and Discrimination: A Reply to Ketchum” (1980) 40 Analysis 109–12.CrossRefGoogle Scholar

2. Hartney, supra note 1 at 294.Google Scholar

3. This definition of “collective” is not inconsistent with David Copp’s definition of the same. Copp, David “What Collectives Are: Agency, Individualism and Legal Theory” (1984) 23 Dialogue 249 at 249.CrossRefGoogle Scholar In contrast, Peter A. French construes collectives as being of two general sorts: aggregates and conglomerates. Borrowing his use of these terms from geology, French defines an “aggregate” (or an “aggregate collectivity”) as a collection of people whose membership is fixed, not subject to change over time. French, Peter A. Collective and Corporate Responsibility (New York: Columbia University Press, 1984) at 5.Google Scholar A conglomerate (or a “conglomerate collectivity”), on the other hand, is “an organization of individuals such that its identity is not exhausted by the conjunction of the identities of the persons in the organization. The existence of a conglomerate is compatible with a varying membership” (French, ibid, at 13). What is predicable of an aggregate according to French is predicable of each member of the aggregate, while what is predicable of a conglomerate is not necessarily predicable of all or any of its members. What separates aggregates from conglomerates are three features: (a) conglomerates have internal decision and/or organizational procedures by which courses of action can be chosen, whereas aggregates do not; (b) generally, the enforced standards of conduct for individuals of a conglomerate are more stringent than those usually thought to apply to the larger community of individuals; and (c) members of a conglomerate fill different defined roles by virtue of which they exercise certain powers over other members, where a change in the identity of some such member does not necessarily involve a change in the conglomerate’s identity (French, 13–14), See Narveson, supra note 1 at 340f for yet another categorization of collectives.

4. This is not to say, though, that every corporation is or has an organizational structure. If I, being an author, am incorporated for legal purposes, this hardly necessitates that all corporations have such a structure. For the most part, however, multi-personal corporations possess such organizational structures. It is the numerically large conglomerate which is the primary concern of this project.

5. I assume that such principles exist and that, in principle, moral agents are able to know them. I also assume a moral rights realist stance for purposes of this paper. For my primary aim is not to address the concerns of the moral rights sceptic. I do not, for instance, concern myself with refuting the Benthamite claim that moral or natural rights are “nonsense upon stilts.”

6. This notion of a moral right is largely taken from various statements made by Feinberg. Feinberg, Joel Social Philosophy (Englewood Cliffs; Prentice-Hall, 1973);Google Scholar Feinberg, Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy (Princeton: Princeton University Press, 1980);CrossRefGoogle Scholar “In Defense of Moral Rights” drawing on The Romanell Phi Beta Kappa Lectures, 1990, in Feinberg, Joel Freedom and Fulfillment: Philosophical Essays (Princeton: Princeton University Press, 1992) at chs. 8, 9 and 10.Google Scholar

7. These are Feinbergian senses of legal and moral rights applied to collectives. However, I combine the respective “interest” and “choice” views of rights, seeing no logical problem in my holding that a right may be possessed to the extent that, other factors obtaining, the subject of the right has a valid interest and/or a valid choice, either or both of which justify protection from infringement or violation. A similar sort of hybrid view of rights is recognized in Hartney, supra note 1 at 303. But there are those, like Hartney and L. W. Sumner, respectively, who suppose that collective rights are possessed only by collective and choosing agents. Hartney, supra note 1 at 309; Sumner, L.W. The Moral Foundation of Rights (Oxford: Clarendon Press, 1987) at 209.Google Scholar The difficulty with Sumner’s position is the difficulty with the choice position on rights in general. That is, the choice position seems to deny rights status to individuals such as infants in that they are not choosing or project-pursuing beings. However, most find it counter–intuitive that infants not be afforded rights, especially moral rights. The same kind of argument might be made in favor of collective moral rights. There is perhaps less of a problem in ascribing certain moral rights to highly organized conglomerates than there would be in the cases of, say, groups lacking such organizational and decision–making structures. But this would not preclude out of hand the ascription of certain moral rights to groups lacking a highly organized decision–making structure. For such rights might be grounded in the groups’ having valid moral interests which are sufficient to impose a moral duty on others to not interfere with the collective’s exercise or enjoyment of the right.

Lesley Jacobs argues for a notion of collective moral rights in which collective rights are derived from more basic individual rights, and where individual rights serve to protect individual integrity, rather than their protecting interests/choices (Jacobs, supra note 1 at 377–81). On Jacobs’ view, individual rights are “abstract” and more basic than collective rights, which are “derivative” of individual rights. I take this to be a version of Moral Rights Individualism, as I note below.

8. It is worth noting that a collective right may be conferred by both moral and legal rules, such as when a corporation has a right to have its contractees honor that to which they agree.

9. Leslie Green distinguishes two senses of collectivism about rights. There are “the rights of collective agents and rights to collective goods”. My argument concerns the plausibility of collective rights where certain collectives are rightholders. This corresponds roughly to Green’s first construal of collective rights, though my view does not assume, as does Green’s category, that only collective agents are plausible candidates for rights ascriptions. Green says, “only the second can fulfil the political function generally assigned to collective rights, and that even it can do so only partially.” Green, supra note 1 at 315.

10. McDonald, supra note 1 at 220.Google Scholar

11. Ibid. at 225.

12. Ladd, John “Morality and the Ideal of Rationality in Formal Organizations” (1970) 54 The Monist 488–516 at 508.CrossRefGoogle Scholar

13. Hartney, supra note 1 at 297. Hartney states:

Value-individualism is not a thesis about the ontology of groups, but about the ground of value. Value-individualism does not imply ontological individualism, i.e., the view that groups are reducible to their members. Even if ontological individualism is false, it does not follow that the value of the group has any foundation other than the well-being of individuals, just as the fact that most entities in the universe are not identical with individual human beings does not entail that their value (if any) has some other ground than their contribution to the lives of individual human beings (Hartney, supra note 1 at 299).

14. Hartney, supra note 1 at 310.

15. The CNAN is a federation of nations, as well as a federation of ethnic groups.

16. This point is borrowed from Michael McDonald, supra note 1 at 218–19.

17. Narveson, supra note 1 at 329. Jacobs affirms certain collective moral rights, though the status of such rights is always derivative from more fundamental individual moral rights. “[M]oral rights are valuable because they are capable of protecting the integrity of individuals” (Jacobs, supra note 1 at 376). This makes collective rights contingent on or reducible to the rights of the individual, for collective rights then function solely to protect individual integrity, according to Jacobs.

18. Furthermore, it seems plausible to hold that the Navajo Nation (collectively) has the moral right to secede from the USA, say, for purposes of self-preservation and where its self-preservation is truly threatened.

19. For a more detailed discussion of the moral right to secede, see Corlett, “The Right to Civil Disobedience and the Right to Secede”, supra note 1. See also, J. Angelo Corlett, “The Morality and Constitutionality of Secession”, unpublished.

20. For an argument in favor of this specific collective right, see Margalit & Raz, supra note 1. The authors do not, however, discuss this as a Marxian right.

21. Buchanan, Allen E. Marx and Justice: The Radical Critique of Liberalism (Totowa: Rowman & Littlefield, 1982) at 48.Google Scholar

22. Marx, Karl & Engels, Frederick Collected Works, 52 Volumes (New York: International Publishers, 1975–1990).Google Scholar There are those who argue that Marx is wholly averse to rights. See Buchanan, Marx and Justice, supra note 21 at ch. 4; Peffer, R.G. Marxism, Morality, and Social Justice (Princeton: Princeton University Press, 1990), 324–28.Google Scholar See J. Angelo Corlett, “Marx and Rights” forthcoming in Dialogue, for a discussion of Marx and collective moral rights.

23. Rawls, John A Theory of Justice (Cambridge: The Belknap Press of Harvard University Press, 1971) at 366.Google Scholar

24. H.L.A. Hart defines “role responsibility” as that duty or set of duties one has by virtue of the role one occupies. Hart, Punishment and Responsibility (Oxford: Oxford University Press, 1968) at 212¬14.Google Scholar

25. Kant, Immanuel The Metaphysical Elements of Justice, trans. Ladd, John (London: Macmillan Publishing Company, 1965) at 23, 26, 29, 100, 107;Google Scholar also see my “Foundations of a Kantian Theory of Punishment” (1993) 31 Southern J. of Phil. 263–83.

26. This claim is supported by Hans Kelsen, who writes:

A right of the State exists when the execution of a sanction is dependent upon a law–suit brought by an individual in his capacity as organ of the State in the narrower sense of the term, as “official.” Especially within the field of civil law, the State can possess rights in this sense to the same extent as private persons. The right of the State here has as its counterpart a duty of a private person. The relationship between the State and the subjects of the obligations created by criminal law allows for the same interpretation, insofar as the criminal sanction is applied only upon a suit by the public prosecutor. The act by which the judicial procedure leading to the sanction is put into motion is then to be considered an act of the State; and it is possible to speak of a legal right of the State to punish criminals, and to say that the criminal has violated a right of the State. Kelsen, Hans General Theory of Law and State (Cambridge: Harvard University Press, 1949) at 200.Google Scholar

27. Ibid. at 192.

28. Ibid. at 194.

29. Kelsen calls such an individual an “organ” of the state. See ibid, at 195.

30. It might plausibly be argued that the moral right to secede might be extended to corporations which, for political reasons, wish to secede (taking property with them) from the nation to which they belong. Perhaps in such cases corporations seek to preserve themselves as autonomous agents from a government which (they believe) seriously threatens their autonomy and legitimate moral interest in self-preservation.

31. This is not to deny, however, that one may choose to become a member of a certain ethnic group if indeed such a group permits membership status by such means. My point is that, in general, one’s being a member of an ethnic group is a matter of orientation and heritage, not choice.

32. What makes an interest moral is that its content is moral.

33. This notion of a collective moral interest is a distributive one. But there seems to be no obvious reason why a distributive conception of collective moral interests cannot support a non-distributivist notion of collective moral rights possession without embracing Moral Rights Individualism. After all, if there is a moral right to secede, it is a purely collectively held one. But even here it is not obvious that there is a purely collectively shared and recognized moral interest which grounds the moral right to secede.

34. In this case, the right to use the mountain in a certain way, by strip mining it or using it for recreation.

35. The Principle of Rights Conflict is derived from the Law of Non-Contradiction.

36. For an argument supporting the attribution of moral rights to associations, see Sumner, supra note 7, at ch. 3.

37. Rawls, supra note 23 at 375.

38. Ibid. at 364. When Rawls defines civil disobedience as a conscientious act he means that civil disobedience is a sincere appeal to the sense of justice of those in political power, of those whose views and practices need to be altered. Also see Bedau, Hugo Adam “On Civil Disobedience” (1961) 58 J. of Phil. 653–65f;CrossRefGoogle Scholar King, Manin Luther Jr. Why We Can’t Wait (New York: Harper & Row, Publishers, 1964).Google Scholar For an insightful and critical discussion of the traditional view of the nature and moral justification of civil disobedience, see Harris, Paul ed., Civil Disobedience (Lanham: University Press of America, 1989) “Introduction.”Google Scholar

39. See J. Angelo Corlett, “The Problem of Collective Moral Responsibility”, unpublished.

40. This line of reasoning does not contradict my earlier claim about the possibility of some collectives qualifying as subjects of the moral right to civilly disobey the law. If a collective is structured such that it is justified to believe that it is a conscientious moral agent, then it seems to be a plausible candidate for its having a moral right to civil disobedience (other conditions obtaining). For a discussion of political, religious groups’ and nations’ rights to civil disobedience and to secede (respectively), see Corlett, “The Right to Civil Disobedience and the Right to Secede”, supra note 1.

41. Feinberg, Joel “The Nature and Value of Rights” in Rights, Justice, and the Bounds of Liberty: Essays in Social Philosophy (Princeton: Princeton University Press, 1980) at ch. 7.CrossRefGoogle Scholar

42. Raz, Joseph “Right-Based Moralities” in Frey, R.G. ed., Utility and Rights (Minneapolis: University of Minnesota Press, 1984).Google Scholar

43. Lomasky, Loren E. Persons, Rights, and the Moral Community (Oxford: Oxford University Press, 1987) at 228–29.Google Scholar

44. What are some additional criteria for a justified theory of collective moral rights? By “criteria” I mean a list of independent desiderata for such a theory and a list of independent questions for the theorist to answer concerning collective moral rights ascriptions. One such criterion is that it not minimize the separateness of persons. For an explanation of the separateness of persons objection to utilitarianism’s treatment of individual rights, see John Rawls, supra note 23 at ch. 3; Nozick, Robert Anarchy, State, and Utopia (New York: Basic Books, 1974), ch. 7;Google Scholar and Mackie, J.L. “Rights, Utility, and Universalization” in Frey, R.G. ed., Utility and Rights, supra note 42 at 86f.Google Scholar That is, a theory of collective moral rights should recognize the significance of persons as autonomous individuals in that the life each lives is the only one each has. Moreover, it ought not to emphasize the importance of collective moral rights at the expense of individual welfare. For individual autonomy, concern for one’s own welfare, and the like are essential to self-respect, the protection and promotion of which should be among the primary aims of any theory of moral rights.

However, just as a theory of collective moral rights ought not to minimize the separateness of persons, it ought not to inflate its importance either. While preserving individual autonomy and individual welfare, such a theory must also place such concerns along side the crucial significance of collective goods and their realization. For collectives, it might be argued, ought to be construed as having their own separateness which requires protection and respect.

Another criterion for a justified theory of collective moral rights is that it not view persons or collectives as mere means to the end of, say, social utility. Rawls and Nozick each make this point against utilitarianism’s not respecting individual rights (Rawls, ch. 3; Nozick, ch. 7). This Kantian point stresses the importance of human dignity, individual and collective, in any theory of moral rights. It cautions against an act-utilitarian theory which would place such an emphasis on the value of collective goods or rights that individuals may be used as mere means, say, to the end of social stability by permitting a country’s right to peace and security to always trump an individual’s right to free speech.

Next, a justified theory of collective moral rights ought to safeguard against not differentiating between the distinct sons of rights which might be possessed by a collective, and recognizing that justified attributions of collective legal rights and collective moral rights require separate analyses. Much confusion results in failing to see that if a collective can have a right, it can have a moral right without having a legal one, and vice versa. This does not mean that a collective cannot possess a right which is both a legal and a moral right. For there is some overlap in the contents, subjects and objects of both moral and legal rights. The content of a right is what it is a right to. The subject of a right is the one (or collective) who (which) possesses the right. The object of a right is the one against whom the right holds to a duty. For more on the distinction between collective legal and moral rights, see Hartney, supra note 1 at 304.

A justified theory of collective moral rights also evades the problem of political atomism. Atomism is the social contract theory which arose in the 17th century with Thomas Hobbes and John Locke. It holds that society consists of individuals for the fulfillment of individualistic ends. It asserts the priority of the individual agent and her rights over societal goods. It affirms an instrumentalist view of society, i.e., that society is valuable only to the extent that it serves individual welfare. Furthermore, it holds the “Primacy of Rights Thesis:” it is fundamental to ascribe certain rights to individuals instead of their obligation to belong to society. Taylor, Charles “Atomism” in Philosophy and the Human Sciences: Philosophical Papers, Volume 2 (Cambridge: Cambridge University Press, 1985), 187–210.CrossRefGoogle Scholar But this is a difficulty which is relatively easy for the collective moral rights theorist to evade since she is in part arguing that if rights are valuable, then collective (as well as individual) rights are valuable.

Moreover, a justified theory of collective moral rights should provide jointly necessary and sufficient conditions of plausible collective moral rights ascriptions. At least, a fullblown theory of collective moral rights must succeed in doing this.

Although adequate answers to each of these problems is required of any justified and full-blown theory of collective moral rights, I do not attempt to provide complete replies to each of these quandries. Instead, I seek to give a foundation of a justified theory of collective moral rights, one which makes plausible the claim that collective moral rights ascriptions are sometimes justified.

45. Joseph Raz, supra note 42 at 53.

46. These notions of the interest and choice models are taken from Waldron, Jeremy ed., Theories of Rights (Oxford: Oxford University Press, 1984) “Introduction.”Google Scholar

47. May, Larry The Morality of Groups: Collective Responsibility, Group-Based Harm, and Corporate Rights (Notre Dame: University of Notre Dame Press, 1987) at 114.Google Scholar

48. Ibid. at 114.

49. Ibid.

50. Ibid.

51. Ibid. at 112. May borrows this notion from Feinberg, Joel Doing and Deserving: Essays in the Theory of Responsibility (Princeton: Princeton University Press, 1970),Google Scholar and Rights, Justice, and the Bounds of Liberty, supra note 6.

52. May, supra note 47 at 112.

53. Ibid. at 113. See also Shapard, supra note 1 at 302.

54. May, supra note 47 at 113.

55. Ibid. at 115.

56. Ibid. at 116.

57. Ibid. at 117. Compare Jeremy Waldron’s claim that since there is no adequate account of a social good’s desirability in terms of individual group members, there is no point in saying that the good is any single member’s right to pursue. See Waldron, Jeremy ed., Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man (London: Methuen, 1987) at 186–87.Google Scholar

58. May, supra note 47 at 120.

59. Ibid. at 124.

60. Ibid.

61. Ibid. at 125. Even so, he argues, corporate property rights should not be afforded the same moral or legal status as individual property rights, at 132.

62. Ibid. at 132.

63. Kelsen, supra note 26 at 96.

64. Ibid. at 93.

65. May, supra note 47 at 112.

66. Dworkin, Ronald Taking Rights Seriously (Cambridge: Harvard University Press, 1977) at 194.Google ScholarPubMed

67. A similar point is made by Shapard, supra note 1 at 306.

68. The caution against the proliferation of rights is registered in Sumner, supra note 7 at ch. 1; Lomasky, supra note 43 at 4–7, 82, 224 and 229.

69. A similar position to this is argued by Rafalko in regards to corporations and rights (Rafalko, supra note 1 at 917–20). Contrast Rawls, who considers certain collectives such as nations, provinces, business firms, etc. to be “persons”. Rawls, John “Justice as Fairness” (1958) 67 Phil. Rev. at 166;CrossRefGoogle Scholar A Theory of Justice, supra note 23 at 521.

70. If Michael McDonald is correct, certain other individualist (liberal) challenges to Moral Rights Collectivism run afoul. Supra note 1 at 229f.

71. There are questions which would require adequate answers by a full-blown theory of collective rights, queries which I did not take on in these pages. First, there is the matter of justifying legal and other nonmoral collective rights ascriptions. Secondly, there is the question of whether or not Rights Realism (the view that rights are ontological constituents of the universe) itself is plausible. A complete theory of rights, it seems, must answer these and other important queries.

72. Green, supra note 1 at 315.