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Two Views of Collective Rights

Published online by Cambridge University Press:  09 June 2015

Leslie Green
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Extract

In this paper, I distinguish two views of collective rights, viz., rights of collective agents and rights to collective goods. My argument is that although both have a place in moral, political and legal argument, only the second can fulfil the political function generally assigned to collective rights, and that even it can do so only partially.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 4 , Issue 2: Collective Rights , July 1991 , pp. 315 - 327
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 1991

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References

1. E.g., Mackie, J. “Can There be a Right-Based Moral Theory?” inGoogle Scholar Waldron, J. ed., Theories of Rights (Oxford: Oxford University Press, 1984) 168 at 179: “It may be asked whether this theory is individualist, perhaps too individualist. It is indeed individualist in that individual persons are the primary bearers of rights, and the sole bearers of fundamental rights, and one of its chief merits is that, unlike aggregate goal-based theories, it offers a persistent defence of some interests of each individual.”Google Scholar

2. Waldron, J. ed., Nonsense on Stilts: Bentham, Burke and Marx on the Rights of Man (London: Methuen, 1987) at 190–209.Google Scholar

3. Hegel, G.F.W. The Philosophy of Right, trans. T.M. Knox (Oxford: Clarendon Press, 1945) at 235 (addition to para. 37).Google Scholar

4. Thomas Reid took an extreme view of this. He held that the concept of a right is “too artificial to be the birth of common language. It is a term of art contrived by civilians when the civil law became a profession.” Thomas, Reid, Essays on the Active Powers of the Human Mind (Cambridge, Mass.: MIT Press, 1969) at 379.Google Scholar

5. As Hegel recognized: “to have a right gives one a warrant, but it is not absolutely necessary that one should insist on one’s rights, because that is only one aspect of the whole situation.” Supra, note 3 at 235.

6. Raz, J. The Morality of Freedom, (Oxford: Clarendon Press, 1986) at 166.Google Scholar

7. I draw no distinction between duties and obligations. The definition provides an analysis of claim rights but can be extended in obvious ways to cover other forms of normative protection, such as immunities.

8. Waldron, Supra, note 2 at 185.

9. Sumner, L.W. The Moral Foundation of Rights, (Oxford: Clarendon Press, 1987) at 209.Google Scholar

10. This is an interesting case for Sumner’s theory, since it seems easier to give an account of the collective well-being of French Quebec than it is of its powers of collective choice. (The notion that the legislature of Quebec acts only for French Quebec is a nationalist conceit.)

11. Green, L. The Authority of the State, (Oxford: Clarendon Press, 1988) at 206–09.Google Scholar

12. Mill, J.S. On Libert, ed. by Wamock, M. (London: Fontana, 1962) at 212–13.Google Scholar

13. MacCormick, D.N. “Rights in Legislation,” in Hacker, P.M.S Google Scholar Raz, J. eds, Law, Morality, and Society: Essays in Honour of HLA. Hart (Oxford: Clarendon Press, 1977) 189 at 205.Google Scholar

14. MacCormick, D.N. LegalRight and Social Democray, (Oxford: Clarendon Press, 1982) at 142.Google Scholar

15. Réaume, D. “Individuals, Groups, and Rights to Public Goods” (1988) 38 Univ. Toronto L.J. 1.Google Scholar

16. Raz, Supra, note 4 at 208.

17. Ibid.

18. McDonald, M. “Should Communities Have Rights? Reflections on Liberal Individualism”, this issue at 232.Google Scholar

19. This conclusion is reached on different grounds in Tushnet, M. “Law and Group Rights: Federalism as Mode,” in Google Scholar Hutchinson, A. & Green, L. eds, Law and the Community: the End of Individualism (Toronto: Carswell, 1989) 276 at 277–97.Google Scholar