Group Rights and Shared Interests
| Author | Adina Preda |
| Published date | 01 June 2013 |
| DOI | 10.1111/j.1467-9248.2012.00975.x |
| Date | 01 June 2013 |
| Subject Matter | Original Article |
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P O L I T I C A L S T U D I E S : 2 0 1 3 VO L 6 1 , 2 5 0 – 2 6 6
doi: 10.1111/j.1467-9248.2012.00975.x
Group Rights and Shared Interestspost_975250..266
Adina Preda
University of Montreal
One challenge in contemporary political philosophy is to reconcile groups’ claims for rights and collective self-
determination with a liberal commitment to the priority of individuals’ rights and well-being. A solution to this
puzzle may rest on a justification of group rights based on shared individual interests. This presupposes the collective
conception of group rights, which does not entail that a group has to be conceived of as a distinct entity, with an
independent moral standing. Such a strategy would thus not lead to conflicts between the rights of a group and those
of its individual members. This article argues that this strategy does not succeed in justifying genuine group rights.
Shared interests cannot ground rights held by a group qua group, especially the kind of rights that national or cultural
groups demand. The conclusion of this argument is that the interest theorist has to embrace a view of groups as
distinct entities in order to ascribe them rights qua group. So the upshot of this article is that communitarian or
full-blown nationalist justifications of collective rights may be more coherent than some liberal attempts although
probably less plausible and more problematic from a normative point of view.
Keywords: group rights; shared interests; interest theory of rights; individualism;
public goods
Group rights are pervasive in most legal systems and are the foundation of international law.
Legal rights are ascribed to a variety of organised groups such as corporations, teams,
institutions or states and we also use the language of group rights to refer to the rights of
classes or categories of people, such as women, workers and travellers as well as to national
or cultural groups. But ascriptions of moral rights to some groups are problematic for both
conceptual and normative reasons.
Conceptual analyses of the nature of rights treat them as instruments that protect either
individuals’ choices or their well-being or both. For this reason, it is unclear whether groups
can hold rights since it is doubtful that they have the kind of agency that would enable them
to make choices or the kind of irreducible moral status that would allow us to talk about
their well-being. But even if this conceptual obstacle is overcome, and groups can be
ascribed moral standing, we are faced with serious normative concerns. On this count, the
worry is that the rights of groups might conflict with, and possibly override, the rights of
their individual members. Cases of oppression in the name of preserving group identity or
culture are not uncommon. If groups are conceived of in the same way as individual
right-holders, that is, as irreducible objects of moral concern, their interests might trump
those of their members.
In response to this concern, many liberals who want to hold on to individualist
commitments while making room for cultural or national allegiances have put forward a
different view, according to which group rights – including rights to collective self-
determination – can be justified on the basis of individuals’ interests, and are only held
against outsiders (Kymlicka, 1995). If that is the case, there is no possibility of a conflict with
the rights of individual members; moreover, this kind of view is thought to be capable of
bypassing metaphysical questions about the nature of groups.
© 2012 The Author. Political Studies © 2012 Political Studies Association
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This strategy has become very popular and it underlies, albeit sometimes only implic-
itly, many liberal (nationalist) accounts, which seek to justify group rights.1 These
accounts often rely on the justification provided by Joseph Raz and popularised by Will
Kymlicka. The appealing feature of this view, namely its individualist ontological and
normative commitments, entails that various groups, from stamp collectors to nations and
populations of states, can be treated on a par, namely as mere collections of individuals
united only by a shared interest. This strategy thus relies on what Peter Jones calls the
‘collective conception’ of group rights ( Jones, 1999). But in spite of its popularity, very
few philosophers have provided rigorous analytical arguments in support of this con-
ception.2 This article tries to fill this gap and examine more closely the collective con-
ception of group rights.
I argue that this strategy does not succeed and genuine group rights cannot be justified
merely on the basis of individual interests. A necessary intermediate step is to ascribe an
irreducible interest to the group as a whole and arguably embrace a conception of groups
as distinct entities, with ‘a life of their own’. This argument implies that nationalist or
collectivist accounts of group rights are more consistent than individualist ones although
not necessarily more plausible.
The article is structured as follows: first, I outline two alternative conceptions of group
rights together with the central tenets of the two main theories of rights. Next, I
consider the challenges faced by a justification for group rights based on the collective
conception. This argument comes in two steps: the first is that a justification based on
shared interests is either unsuccessful or has high costs; the second is that, even when
shared interests can ground rights, they are more plausibly seen as individual rights, that
is, rights held by members of a class severally rather than by a group qua group. I
conclude that a justification based on interests must posit an irreducible collective interest
in order to ground group rights but this presupposes the corporate conception of group
rights. The aim of this article is not to argue that groups cannot have rights but only to
challenge what is considered an appealing account of group rights, that is, the collective
conception, and show that it cannot evade some difficult questions regarding groups’
agency and/or moral standing.
Group Rights: The Theoretical Framework
We should start with a definition of group rights. Jones explains that ‘a right is a group right
only if it is held by a group qua group rather than by its members severally’ ( Jones, 1999,
p. 354). It is important not to confuse group rights proper with individual rights ascribed
in virtue of group membership ( Jones, 2008, pp. 2–3). Exemptions from legal prohibitions
for members of some religious groups, claims to parental leave and the rights of asylum
seekers are all examples of individual rights granted in virtue of group membership or a
feature that some people share. The holder of a group right, by contrast, is the group rather
than its members as separate individuals.
But depending on how the right-holder is conceived of, two conceptions of group
rights can be identified in the literature: the more ‘traditional’, corporate conception and
the collective one, mentioned in the introductory section.3 A first assumption of the
corporate conception is that the group holds the right as a unit, just like an individual
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A D I N A P R E DA
human being; ‘the rights of a group are “its” rights rather than “their” rights’ ( Jones,
2007, p. 2). The group is thus seen as an individual, a distinct entity, separate from its
individual members. Jones suggests that this implies a second assumption of groups as
entities with an independent moral standing; this assumption likens the group to a
person.4 Many conceptual as well as normative reservations about group rights presuppose
the corporate conception. The conceptual concerns are mostly related to the second
assumption since it is unclear whether groups should be seen as entities with moral
status; however, the first assumption can raise normative concerns of its own since seeing
the group as a unit allows for the possibility of conflicts between the rights of the group
and those of its members.
However, a different conception of group rights has recently emerged in the literature,
which Jones calls ‘the collective conception’. On this alternative conception, a right is held
jointly by the group’s members; the right is ‘their’ right rather than ‘its’ right. This implies
that there is no group with a separate identity and moral or ontological status; the
right-holder is a mere collection of individuals. Note that on this view, a group cannot have
rights against its own members. If the right was held jointly, that is by all members of a
group together against its members, each member would end up having a right against
him/herself, which is conceptually incoherent ‘granted the usual assumption that people
cannot hold rights against themselves’ ( Jones, 2007, p. 6). For this reason, the collective
conception rules out ‘internal restrictions’ and can only accommodate rights against
outsiders. Thus, if a group is to have rights against its own members, it must be conceived
as a corporate conception right-holder, that is, as an entity that is separate and distinct from
its own members.
If these are two free-standing ways of conceptualising group rights, they could each in
principle be combined with any theory of rights in order to yield group rights. The two
main candidates are the choice or will theory and the interest or...
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