Are there Collective Human Rights?
| Date | 01 March 1995 |
| Published date | 01 March 1995 |
| Author | Michael Freeman |
| DOI | 10.1111/j.1467-9248.1995.tb01734.x |
| Subject Matter | Article |
Political Studies
(1 999, XLIII,
25-40
Are there Collective
Human
Rights?
MICHAEL
FREEMAN*
The Problem
of
Collective Rights in Political Theory
The doctrine of human rights affirms two fundamental principles of Western
liberalism. The first is that the human individual is the most fundamental moral
unit. The second is that all human individuals are morally equal. These two
principles express a commitment to egalitarian individualism. Yet the doctrine
belongs to an international discourse which also affirms two collectivist
principles. The first is that states are the primary agents of international
relations. The second is that states represent nations. Liberal theory and
international law reconcile the claims
of
individuals and states by affirming that
states are obliged to respect the human rights of individuals. The status of
nations is less clear. The common Article
1
of the two international human-
rights covenants of 1966 declares that all
peoples
have the right to self-
determination. This proposition has generally been interpreted to mean that
the populations of colonial territories have the right to form nation-states. It
has, however, also been cited to express the aspirations
of
various national and
ethnic minorities, and of indigenous peoples. The logical and practical relations
between these collective claims and individual human rights is uncertain.
The problem inheres in liberal-democratic theory. The classical liberal theory
of Locke held that every individual equally had a set of natural rights, and that
government was legitimate only if it was based on the consent
of
the governed
and protected the fundamental rights of all. In such political communities the
majority had the right to bind the rest.’ Thus Locke derived from the premises
of equal and individual rights conclusions about collective rights of majorities.
In the republican democratic tradition associated with Rousseau sovereignty
is placed not in the majority but in the general will. Rousseau maintained that
this will was indivisible. If it was to prevail, there must be no partial
associations in the state.2 Locke and Rousseau both located the problem of
political authority in the relation between the individual and the state.
Minorities in Locke’s theory and partial associations in Rousseau’s had no role
in legitimate government. This approach to the problem of political authority
was introduced into world-historical politics when the French Revolution
proclaimed individual rights and the sovereignty of the nation, while
manifesting its hostility towards minorities and partial associations.
*I
should like
to
thank other contributors to this volume, especially David Beetham and Allan
Rosas, for their helpful comments on an earlier version of this paper, and Will Kymlicka for
stimulating exchanges
of
views on this subject and for references to Canadian sources.
’
J.
Locke,
The
Second
Treatise
of
Government
(Cambridge, Cambridge University Press,
1970),
para.
95.
’
J. J.
Rousseau,
The
Social
Contract
(London, Dent,
1966),
Book
11,
chs
2
and
3.
0
Political Studies Association
1995.
Published by Blackwell Publishers,
108
Cowley Road, Oxford OX4
IJF,
UK
and 238 Main
Street, Cambridge, MA 02142,
USA.
26
Are
thew
col1ectii.e
Hurnun
Rights?
Classical liberalism normally took the culturally homogeneous nation-state
for granted. The republicanism of Rousseau and the French Revolution was
explicit about the need for a civil religion.3 John Stuart Mill held that free
institutions required a united public opinion and were ‘next
to
impossible’ in a
country made up of different nati~nalities.~ John Rawls has continued the
tradition of nation-state liberal individualism.’ Lord Acton, by contrast,
argued that the association of the state with the nation violated the ‘rights of
nationality’ by subordinating
all
nationalities not associated with the state.6
The principles of equal individual rights and majority rule have provided the
theoretical basis
of
liberal-democratic nation-states. The concept
of
a ruling
majority. however. implies that of a subordinate minority. Liberal-democratic
theory treats such minorities as sets of outvoted individuals. Their situation is
legitimate because their individual rights are guaranteed, because these rights
give them the opportunity to become part
of
the majority from time to time,
and because
it
is
the outcome of the rules
of
the democratic game. In this
system there
is
majority rule. but no minority problem.
The construction of modern nation-states has. however, been accomplished
partly
by
the domination and attempted assimilation of traditional commu-
nities. Many contemporary nation-states also contain minorities produced by
immigration. Modern societies therefore include collectivities bound by
common values that may be distinct from those of the majority. Such
collectivities may form permanent minorities whose interests are persistently
neglected by the majority. The state and the cultural majority may form a
hegemonic bloc. Many social groups-for example. women, gays and the
disabled
-
niay be structurally disadvantaged in liberal democracies, and may
require special rights
in
order to achieve equal citizenship. These rights might
be collective (for example. quotas in the political representation
of
women) but
the claims of these groups can generally be met by implementation of the
individual right to be free from arbitrary discrimination and appropriate
measures
of
positive discrimination. Because ethnic groups have common
comprehensive cultures and national groups a sense of political distinctiveness,
they raise special problems for nation-state political cultures based on the
principle of majority rule. The doctrine of equal and universal rights may
support the hegemony of the majority culture over various subordinated
cultures.’
The problem of collective rights. therefore. arises in two ways. It arises firstly
because the concept of individual human rights has been introduced into an
international discourse committed to various forms
of
collectivism. It arises
secondly because liberal-democratic theory and practice have traditionally
concerned themselves with the relation bctween individual rights and the
collective rights
of
nation-states.
It
is a mistake to believe that liberal
democracy has favoured the individual over the collective. Rather,
it
has given
Rousseau.
The
Social C‘ontrucr.
Book IV.
ch.
8.
’
J.
S.
Mill.
Cotisideratiotis
oti
Rrpesentrtiii.c
Gowrrinient
(London,
Dent,
1910).
pp,
361-2.
‘
J.
Rawls. ’The
law
of
peoples‘
in
S.
Shute
and
S.
Hurley
(eds),
On
Human
Righis;
The
Oxfbrd
Lord Acton.
Ex7aj.r
in
the
Liberal Interpretntion
of
Histor,: Sefected Papers (Chicago,
1’.
Van Dyke.
Human
Righrs,
Ethnicitj,.
arid
Discrimkaticin
(Westport
CN,
Greenwood,
1985).
Amnestj,
Lectures
l9Y3
(New
York.
Basic.
1993).
pp.
41-82,
Lrliversity
of
Chicago
Press,
1967),
p.
157.
pp.
7
8.
59-60. 145-6. 220.
t
I’oiilic.il
Sludirr
Association.
1995
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