Adina Preda. Lecturer. School of Politics and International Relations. University College Dublin.

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1 Adina Preda Lecturer School of Politics and International Relations University College Dublin 1

2 Choice theory group rights 1 Group rights are pervasive in most legal systems and are the foundation of the international law. We ascribe legal rights to a variety of groups such as corporations, teams and institutions or states and we often refer to groups as if they possess rights. But ascriptions of moral rights to groups face some conceptual barriers since it is unclear that groups can and do possess the characteristics necessary to qualify as right holders. It would be difficult to argue that groups possess the same kind of moral standing as an individual agent; indeed we may doubt whether groups, rather then their individual members, exist at all. Moreover, ascribing rights to groups raises important normative questions about possible conflicts between group and individual rights. This paper will only address some of the conceptual questions around the possibility of justifying moral group rights. The central concern addressed here is whether the concept of rights itself precludes groups from being conceived as rightholders. The answer to this question depends in part on the theory of rights one adopts but also on the conception of group rights employed. Our choice of a theoretical basis for ascribing moral rights to groups has significant implications for other conceptual and normative questions. Most importantly, it will determine what kind of groups can be right-holders and under what circumstances. Two competing theories seek to explain the nature of a right and thus clarify ascriptions of rights: the Choice and the Interest theories of rights. The Choice theory is economical with rights; a capacity to act is a necessary condition for possessing rights on this view so entities that do not straightforwardly qualify as moral agents are unlikely candidates. The Interest theory of rights on the other hand, is usually thought to be able to accommodate group rights with much greater ease because it is arguably able to bypass the issue of the moral status of groups. Moreover, the Interest theory is presumed to 1 I would like to thank Peter Jones and Hillel Steiner for very helpful comments on earlier versions of this paper and I hasten to add that none of what is claimed here should be taken to reflect their views. This paper also benefited from comments received from the participants at the Spire Visiting Speakers seminar in UCD as well as from two anonymous referees of the Journal of Political Philosophy. I am also grateful to Dean Machin and Camil Ungureanu for their help with revising the paper. 2

3 discriminate much less between different kinds of groups, since, on some formulations at least, it can justify rights for random groups of individuals, that is groups of individuals that share no feature other than an interest. 2 In order to do this, the Interest theory will have to rely on a Collective conception of group rights, since on that conception groups need not be seen as unitary moral agents. I will argue, however, that the Collective conception, coupled as it must be with the Interest Theory of rights cannot generate moral group rights. This is significant because it tells against attempts to justify rights of states for example if such attempts appeal to a shared (individual) interest rather than relying on thicker nationalist assumptions. 3 This paper argues that the Modern Interest theory of rights 4 cannot avoid difficult issues about the nature of groups. The upshot of this argument is that the Interest theorist has to embrace a conception of groups as unitary moral agents in order to ascribe moral rights to groups; in particular, the Interest theorist has to be a nationalist in order to ascribe rights to some groups, such as language rights for example. Thus, thicker 2 Perhaps the term random is not the most appropriate for describing a group of people who share an interest. I am using this term however to distinguish such groups both from the more organic kind of group and from an organized one. There are similarities between what I call a random group and what Peter French calls an aggregate, which a mere collection of people. His aggregates however are even more random than the kind of group I have in mind, which simply refers to a collection of people who are united only by some shared interests; they may be in physical proximity or not but they are not organized formally and have no strong identity. Examples of such groups are cyclists in a city, a group of stamp collectors, women, the working class, travelers etc. 3 This is I think the strategy used by liberal nationalists, such as Raz and Kymlicka, who seek to justify group rights as instrumental for pursuing individual interests. The same kind of strategy is present, implicitly or implicitly in the emerging literature on territorial rights. See for example Cara Nine A Lockean Theory of territory in Political studies, vol. 56, issue 1, March 2008 and A. Buchanan boundaries: what liberalism has to say in A. Buchanan and M. Moore (eds.) States, Nations and Borders- The Ethics of Making Boundaries, Cambridge University Press, Nine explicitly defends collectivist version of rights to territory while Buchanan appears to be doing so implicitly. However, neither of them, as far as I can see, wants to rely on very thick nationalist assumptions; they refer to the right of a people or a state but it seems that they may want to stop short of endorsing a Corporate conception of group rights, i.e. a view of the people or state as a moral agent. Thus, one upshot of my argument is to support David Miller s mild complaint that Buchanan does not go quite far enough in pursuit of the conditions under which liberal principles can most successfully be implemented, and that, had he done so, he would have given nationality a larger role in the setting of political boundaries. In Miller Liberalism and boundaries: A Response to Allen Buchanan in A. Buchanan and M. Moore (eds.) States, Nations and Borders- The Ethics of Making Boundaries, p I take Miller to offer a (defensible) account of group rights combining the Interest theory with a Corporate conception of group rights. 4 The Modern Interest theory differs from earlier varieties, proposed by Bentham for instance, it that it assigns rights on the basis of interests only when duties to promote interest benefit specific individuals. This is in response to criticism leveled at earlier versions which were seen as too generous in their ascription of rights. Those versions entailed that whoever benefited from a duty could possess a right. See Peter Jones Rights, MacMillan, 1994, pp

4 nationalist accounts may succeed where their more liberal variants fail. This is contrary to what is generally thought of the Interest theory. Also contrary to what is generally thought, I aim to show that the Choice Theory has the conceptual tools to defend group rights. I argue that some (voluntary) groups can be seen as moral agents, albeit in a limited sense, that is nevertheless sufficient for ascriptions of rights. Thus, the argument presented here implies that only groups with a coherent decision making procedures are capable of acting as right holders. Furthermore, it entails that group rights are justified only inasmuch as certain conditions which would enable their members to make voluntary choices are fulfilled. Depending on one s conception of voluntariness, this may further entail that respect for certain democratic values, for instance, is a necessary condition for group rights. The general conclusion of my argument is that the liberal who wants to defend moral group rights has to bite the bullet and accept either a conception of (some) groups as organic entities or an individualist, voluntarist account of group rights that nevertheless makes room for some conceptual supraindividualism. The paper is structured in three main parts. The first part outlines the two competing theories of rights mentioned above and introduces two competing conceptions of group rights. In the second part, it is argued that the Interest theory faces considerable difficulties in justifying group rights based on a Collective conception of groups. And the last part outlines the strategy most readily available to the Choice theorist for defending group rights and deals with the most pressing issue posed by it: group agency. The paper concludes by outlining some implications of the arguments defended here. 1. Theories of rights a) The Choice and the Interest theories of rights Two main theories are competing to explain the nature of rights; these are the Choice and the Interest Theories of rights. I will only briefly outline their main claims about the nature of rights. 4

5 According to the Will or Choice theory somebody possesses a right if and only if s/he has the control over the performance of the corresponding duty, that is if she/he can enforce or waive that duty. 5 Any right, on this view, comes with trimmings, namely Hohfeldian powers to enforce the correlative duty and a right-holder can be identified by looking at who has these powers of waiver and enforcement over someone else s duty. A capacity to exercise these powers is thus required for the possession of rights and exercising any of them implies making a choice. 6 The Choice theorist who doubts that groups can make choices is unable to ascribe rights to groups; thus, a preliminary step in the ascription of Choice theory rights to groups is to show that groups can be seen as agents. In contrast, the Interest theory does not face this problem since all that is required in order to be a right holder is having a (sufficiently strong) interest and any number of creatures or entities, groups included, can have interests. The most basic premise of the Interest or Benefit theory of rights is that rights protect an aspect of someone s well-being or their interest. Thus, a necessary but not sufficient condition for having a right is having an interest in the performance of an action by someone else. This is obviously not a sufficient condition because we have a number of interests that cannot be said to ground a right; so other conditions have to be in place for a right to exist. On one of the most popular versions of the Interest theory, defended by Raz, only a weighty enough interest can serve as a sufficient reason for holding others under a duty. On this view, X has a right if and only if X can have rights, and, other things being equal, an aspect of X s well-being (his interest) is a sufficient reason for holding some other person(s) to be under a duty. 7 This account will occupy us for a considerable part of this paper. For now, it remains for me to say that the Interest theory, generally taken to be the more popular of the two, is happy to make room for group rights. Modern rights theorists tend to justify group rights on the basis of a shared interest, without spilling much ink on the nature of groups issue. 5 Cf. H.L.A. Hart in Steiner, Hillel - Working Rights in M. Kramer, Simmonds & Steiner - A Debate over Rights, Oxford University Press, Oxford, 1998, p Because exercising one of the powers involved in having a right precludes the exercise of one or more of the others. See H. Steiner Working rights, pp In J. Raz The Morality of Freedom, Clarendon Press, Oxford, 1986, p

6 Having briefly surveyed some alternative views about the nature of rights, let s move on to consider the nature of group rights. What makes some rights the rights of groups rather than individuals and how are we to conceive of groups? b) Two conceptions of group rights It is best to start with a succinct definition of what a group right is, as opposed to an individual right. Peter 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. 8 Individual members of a group may have rights, even in virtue of being members of a group, but if they possess them as individuals not as a group labelling them group rights does not adequately describe the situation. So it has to be stressed that a group right is defined by its subject rather than its object, 9 that is by who holds the right rather by what the right entitles the possessor to. Parallel to the two theories of rights described earlier, two conceptions of group rights can be discerned in the literature; they correspond to two ways of conceiving of groups. 10 Jones makes a very insightful distinction between a Corporate and a Collective conception of group rights, which are based on different assumptions and have different implications. On the Collective conception of group rights groups need not have an ontological reality independent of that of its members. A group can simply be a number of individuals united only by a common interest or goal. On this conception, groups need not have a status that is not reducible to that of their individual members and need not be 8 P. Jones Group rights and group oppression in The Journal of Political Philosophy, vol. 7, no. 4, 1999, p Ibid., p 355. Nevertheless, as we will see later, in a different paper he claims that one way of establishing that groups can have rights is by focusing on the object, rather than the subject, of a right. See P. Jones Group Rights, Public Goods and Participatory Goods, paper presented at Manchester Workshops in Political theory, Manchester, September 3-5, That strategy, however, does not establish that groups can have rights but only that is some rights can be defended they would have to be group rights. 10 As one of the referees points out, there may well be other ways of conceiving of groups, and in particular there may be views in between individualism and collectivism. That s no doubt correct but I take it that the collective conception is just an umbrella term for a number of conceptions that range from individualism to a kind of collectivism less robust than the kind presupposed by the Corporate conception. Moreover, this distinction made by Peter Jones is a useful tool for distinguishing between strategies of justifying group rights and especially for distinguishing between ways in which we can ascribe rights to different kinds of groups. Adopting this distinction for the purposes of enquiring into group rights justification does not therefore mean that one has to opt for a strictly individualist or a collectivist conception of groups, as I hope it will become clear later. 6

7 moral agents in order to have rights. It is their shared interest that can justify a group right so, on this view, any random collectivity can have rights. This is not to say that the group does not have a right qua group, or that the group right is the sum of the individuals rights; it is rather that the right is held jointly by the group s members. Any set of individuals who possess a joint interest in a good can have group rights relating to that good provided that their joint interest is sufficiently significant to create duties for others. What unites and identifies a set of individuals as a group for right holding purposes is simply their possessing a shared interest of sufficient moment. 11 Thus, one cyclist s interest in there being safe and convenient cycle ways in a city, for example, is not enough to create a duty in the city authorities to build one. However, the shared interests of all cyclists might well suffice, in which case we could say that the cyclists collectively possess a right that the cycleway be built. 12 On the other hand, a Corporate conception of group rights has to assign moral status to groups prior to attributing them any rights. On this conception, groups would be unitary entities rather than a mere collection of individuals; they would be more than the sum of their members. On this view, the rights of a group are its rights rather than their rights. 13 The rights theorist who doubts that groups can be conceived in this way will have to either accept the Collective conception or abandon the idea of group rights altogether. Since a necessary condition for being a right holder on the Choice theory of rights is having moral agency, this theory requires a Corporate conception of groups. The Collective conception of group rights, on the other hand, presupposes the Interest theory of rights. 14 Only the Interest theory can ascribe rights to groups on this conception so if the account of group rights provided by the Interest theory fails, the Collective conception of group rights collapses altogether. Recall that on the Interest 11 Peter Jones Group Rights and Group Oppression, p 357. See also Peter Jones Human Rights, Group Rights and Peoples Rights in Human Rights Quarterly, vol. 21, 1999, pp Jones s example in P. Jones - Group Rights and Group Oppression, p Jones - Group Rights, Public Goods and Participatory Goods, p In Jones account, the very description of a collective conception makes reference to the Interest theory of rights. But we can separate the two nevertheless; a Collective conception of group rights is one that does not require assigning moral status or unity to groups. As such it will have to rely on the Interest theory but the Collective conception if group rights should not be taken simply as an application of the Interest theory to the case of group rights. 7

8 theory, a necessary and sufficient condition for the existence of a right is an interest of sufficient importance. In terms of group rights, what is required is a shared interest but there are reasons to doubt that a shared interest can do the work necessary to justify group rights. What I want to argue is that the collective conception as described by Jones is not an adequate conception of group rights since it does not successfully generate rights of a group qua group. 15 The Modern Interest theory of rights may be able to accommodate group rights but only based on a Corporate conception. 16 In other words, the Corporate conception of group rights cannot be avoided but on the Corporate conception, the issue of a group s agency or ontological status looms large. Once this hurdle is overcome, however, the Choice theory can ascribe rights to groups as well. So the Interest theory is no more accommodating of group rights than the Choice theory. 2. Against the Collective conception group rights As I said earlier, the Collective conception has to rely on the Interest theory of rights. So if the Interest theory fails to offer a justification of group rights compatible with this view of groups, the Collective conception becomes redundant as an account of group rights. How does a Collective conception coupled with an Interest theory of rights generate a group right? 17 The interest theorist can argue that a joint interest of several individuals in a collective good may be sufficient to ground a group right. What distinguishes a group 15 It is worth pointing out that Raz does not explicitly embrace the collective conception and in a sense this argument may be of limited interest since the justification of group rights criticized here combined Raz s definition of a right with a Collective conception of group rights as described by Jones. But it is significant I think because it shows that for the theorist who is not prepared to assign moral status to groups, there is no readily available argument for defending group rights. Although not impossible, I find it difficult to imagine another way of justifying group rights on the collective conception than the one described here. Moreover, many theorists who deal with group rights, implicitly or explicitly, presuppose just the kind of account described here. 16 The Interest theory has a number of proponents some as early as Bentham. But I am focusing here on its contemporary varieties, represented by theorists such as Raz, MacCormick, Waldron. I am taking Raz s formulations to be indicate of the views of a contemporary interest theorist but they may, of course, be divergences in places. 17 Since the collective conception of group rights presupposes the Interest theory I shall from now on refer to the Interest theory while assuming that the justification for group rights rests on a collective conception of groups. 8

9 from an individual right in this case is that no single individual s interest would be weighty enough to justify imposing a duty on others. Thus, according to Raz, A collective right exists when the following three conditions are met. First, it exists because an aspect of the interest of human beings justifies holding some person(s) to be subject to a duty. Second, the interests in question are the interests of individuals as members of a group in a public good and the right is a right to that public good because it serves their interest as members of the group. Thirdly, the interest of no single member of that group in that public good is sufficient by itself to justify holding another person to be subject to a duty. 18 There are 2 different concerns I wish to raise in relation to this account of group rights: The mere sharing of an interest does not seem to add it sufficient weight to generate a right when the individual interest (in the same good) is not sufficiently weighty 2. Even if a shared interest can generate a right, it is not clear that this is a genuine group right. Some proponents of this view may want to maintain that it is a group right because it is a right to a certain kind of good (public or participatory good) that cannot be enjoyed individually. This kind of view will be examined in the second section of this part. a) The weaknesses of a shared interest To start with the first point, it will be helpful to recall Raz s definition of a right. X has a right if and only if X can have rights and other things being equal, an aspect of X s well-being (his interest) is a sufficient reason for holding some other person(s) to be under a duty. On this view, rights constitute grounds for the imposition of duties that would serve someone s interest. So, an argument for the existence of a right has to establish that the interest in question can justify a duty. More specifically, the argument also has to establish that the interests in question cannot be defeated by competing (moral) considerations, where such considerations exist. Thus, such an argument would normally appeal to the importance or the value of the underlying interest(s). The more important or valuable the interest is, the easier its job of defeating competing considerations will be. 18 Joseph Raz - The Morality of Freedom, Oxford: Oxford University Press, 1988, p I use group rights and collective rights interchangeably. 9

10 How does this account work in the case of group rights? The Interest theory justification of a group rights is centred on a shared interest of some people. No single individual interest is sufficient, by itself, to justify holding others under a duty. To take Jones example of the cyclists again, a single person s interest in the existence of a cyclepath is (in most cases) not sufficient to defeat competing considerations. Building a cycle-path imposes considerable burdens on people and one person s interest does not justify imposing those burdens. However, when a number of people share the same interest, imposing those burdens may be justifiable. The sharing of an interest is thus thought to supply the additional grounds that are necessary to defeat competing considerations, if applicable. The underlying thought seems to be that the interest will in some way gain weight or value from the fact that it is shared. Let s call this the value added thesis (VAT). But how does the fact that an interest is shared by other people help strengthen the justification for the imposition of a duty? It seems to me that it can do that in either of two ways. One way of providing the necessary justification is showing that the fact that it s shared adds to the importance or the value of an interest; if this is the case the interest becomes a sufficiently weighty one. We ll call this interpretation VAT1. There are, I believe, two possible versions of VAT1. The strong version would be that it is because of the kind of interest that it is that competing considerations can be defeated; to put it differently the value(s) it promotes are in a class of their own so to speak, they are not only more important than the values that underlie the competing considerations but they are of a different nature. 20 Something like this strong version of VAT1 is envisaged by theorists who accord lexical priority to rights; rights, or rather the values they protect are thought to be in a different category, and generally more important, than other values. On this version, then the fact of sharing promotes the interest to this different and higher class. A weaker version of VAT1 would be that some interests promote values that are simply more important than those advanced by competing considerations though not in a 20 Perhaps it is this kind of interpretation that Raz has in mind when he says that it is plausible to suppose that just as only those whose well-being is of ultimate value can have rights so only interests which are the considered of ultimate value can be the basis of rights. In The Morality of Freedom, p but he goes on to reject this idea and argues that interests that are of instrumental value can ground rights as well. 10

11 different class. They rank higher than other values but are on the same scale and thus they can be traded against each other. If VAT1 is a thesis that the Interest theorist would subscribe to, it seems that it is the weaker interpretation that would be favoured by Raz and other modern interest theorists. On their view, the interests that should be afforded the special protection provided by rights can be weighed against other interests so they seem to be on the same scale. Whichever version is taken, however, the important point about group rights is that on VAT1 the mere fact that an interest is shared would have to add weight to the interest in question. Another possible interpretation of VAT VAT2 - would be to claim that although the value(s) promoted by the shared interest is (are) not necessarily more important than the one(s) underlying the single interest, more value is created by protecting the shared interest. In other words, although a unit of this value is not weighty enough to defeat conflicting considerations, several units of the same value will defeat considerations even when such considerations appeal to higher ranking values. On this version, the size of the group matters; other things being equal, the more widely shared, the weightier an interest becomes. This is probably the thesis that Raz would most favour; he says: The right rests on the cumulative interests of many individuals. (This explains why though the existence of the interest does not depend on the size of the group, the existence of the right and its strength does.) 21 So, we will turn our attention to VAT2 after a swift examination of the first one. If we pause to consider VAT1, it is more than a bit mysterious to my mind how the fact of sharing can turn an insignificant interest into a weighty one, particularly if we consider the strong version of that thesis. Notwithstanding some possible dialectical arguments, it seems to me that the fact of sharing cannot change the nature of an interest. The weaker interpretation of VAT1 is still implausible or in the very least quite difficult to defend. 22 Many people share or can have the same trivial interests; the fact that they are all the same does not make them more important. Many, if not most, of us have an 21 Raz The Morality of Freedom, p Perhaps this version of the VAT can be defended if we claim that something has value or importance simply in virtue of being considered valuable or important. So, the fact that several people value something shows that it is valuable. I cannot refute or support this claim here. But it doesn t seem to be the claim made by the Interest theorist, who presumably wants to say that interests, or aspects of people s well-being, are more or less important regardless of how they happen to be perceived by the person who holds them. 11

12 interest in being surrounded by things that give us aesthetic pleasure, e.g. nice buildings, attractive shop windows etc, but the fact that it would benefit most of us does not make this a very weighty interest and it certainly does not seem to give us a right to these aesthetically pleasing objects. So, we ll leave VAT1 behind and concentrate on the second version, which is also more in line with the account of rights put forward by Raz. The second interpretation of our thesis, VAT2, seems to be consistent with Raz s claim that interests of agents other than the right holder can be relevant in establishing a right. It may be that an individual right is justified because it protects not only the interest of the right-holder but interests of others, who remain nevertheless right-less. This kind of claim can be interpreted in a less mysterious way. What the interest theory requires is simply that there be sufficient justification for imposing duties which protect the interest of the right-holder. 23 In some cases, the premises supplying this justification make reference to considerations other than the interest of the right holder (although more often than not those considerations will generally be interests as well). What is important here is that these premises taken together can defeat competing considerations and that the right, once established, serves the interest of the right holder. On this view, having rights becomes something that cannot be assessed once and for all but depends on specific circumstances at specific times; our theory of rights thus becomes more contingent but that s not necessarily a shortcoming, at least not for the Interest theorist. 24 One may want to question VAT2 as well. It is not entirely transparent how more of a relatively unimportant value can defeat what are presumably quite weighty considerations that militate against the imposing of a duty. Again, there are several ways to understand this claim. Perhaps the most straightforward way to make sense of it is by an analogy with a shopping experience. Say apples and oranges are both on offer on my local supermarket shelves. I prefer apples but I like oranges as well and other things being equal, if the same amount of money buys me more oranges than apples, I may prefer to go for oranges. That, however, depends of how much more I like apples compared to oranges. If I don t really like oranges that much, I may not be impressed by 23 Cf. J. Morauta Rights and participatory goods in Oxford Journal of Legal Studies, vol. 22, no. 1, Spring 2002, p This seems to be the view that Raz defends in Rights and Politics in Indiana Law Journal, vol. 71, no. 27,

13 the amount of oranges I can buy. This analogy sheds some light on VAT2 but it also suggests some potential problems. 25 Leaving this analogy aside, I want to consider another way in which the second version of our thesis might be interpreted and which seems to do more justice to Raz s arguments; we ll call this the added reasons interpretation. This interpretation doesn t claim that adding numbers adds value as such but rather that the interests of many may give us more reasons to act than a single interest. 26 The idea is that an interest gives us a reason to act and more such interests constitute more reasons for action; the more reasons there are to act to promote an interest, the easier it will be to defeat competing considerations. The premise here is the one provided by Raz in a recent article, namely that the more reasons one complies with the closer one comes to full compliance (with reason). 27 This is how, if interests give us reasons for actions, (even if only prima facie reasons) the more of them apply to us the more likely it is that they will defeat competing considerations. In the example used by Raz, we are faced with a choice of saving many people from paralysis versus saving a person s life and I take it that his premises imply that we have a duty to save the many (even though the interest that the one person has in staying alive is presumably weightier than the interest each person has in not being paralysed). I do not deny that this argument is plausible and that this conclusion is the one we want to draw in this particular case. It seems to me however that, if we are to accept that this is how a right can be justified, there will be some costs which the Interest theorist or any rights theorist for that matter may be unwilling to pay. The cost is that rights may lose their special place in our moral vocabulary. 28 If it is the strength of the interest, 25 If my analogy is relevant, it may suggest that some values, taken in any amount, will never defeat some top ranking ones. I don t like bananas that much, though I don t dislike them, so I can t imagine forsaking apples for any amount of bananas. Similarly, it may be that some interests are so trivial that regardless of how many people share them, they will not defeat competing considerations. But the important point is that sometimes at least sharing can add value. 26 Whether this can be seen as a different interpretation depends on why interests give us a reason to act; the most plausible interpretation is to my mind, that those reasons will also appeal to some value. 27 See his Numbers, with and without contractualism in Ratio, no. XVI, December This is not the first accusation of this kind leveled at the Interest theory. For a sharp discussion of this type of problems associated with the Interest theory of rights, see N. Simmonds Rights at the cutting edge in M. Kramer, Simmonds & Steiner - A Debate over Rights, Oxford University Press, Oxford, 1998, pp

14 and not the right, that defeats countervailing considerations and helps justify a duty, the right itself plays no special role. A statement by Raz seems to support this point: Assertions of rights are typically intermediate conclusions in arguments from ultimate values to duties. They are, so to speak, points in the argument where many considerations intersect and where the results of their conflicts are summarized to be used with additional premises when need be. 29 One may not agree that seeing rights as intermediate conclusions undermine their status. Nevertheless, the account of group rights considered here seems to have no intermediate conclusions from values to duties. It is interests that justify a duty and the notion of a right seems to play no role in the argument; the work is done by the weight of the interest rather than the notion of right and rights do not even seem to feature in the argument. The Interest theorist needs a separate argument to bring rights back in. There is no reason not to accept that more, even though relatively unimportant interests or values, can defeat competing considerations when a single interest cannot. We can also accept that we have a duty to act in the interest of the many, even when we might thereby sacrifice an important interest or other values. But this argument does not show that this duty corresponds to a right. We need a way to connect such a duty to a right and this connection is missing from the argument presented here. The Interest theorist might want to reply that it is the interest(s) that supply the connection: it is because the duty serves an interest that it corresponds to a right. But we have duties to benefit people when they do not have rights that we do so. If this duty is such that it corresponds to a right, there must be something about the duty itself that tells us that (perhaps it is more important or of a special kind). It may be replied not all duties correspond to rights; only those have a special, peremptory character and that serve someone s interest may qualify. But granting that just point to a more acute problem for the Interest theorist: it seems to be duties that ground rights rather than the other way around! If rights are the conclusion of an argument from a special kind of duties, they either do no feature in the justification of those duties or some sort of logical 29 Raz The Morality of Freedom, p

15 fallacy is involved in that argument. Either way, the Interest theorist may have to concede that rights have no special place in moral theory. 30 One may also wonder what gives some duties a peremptory character. If the interests that justify the duty are of no particular kind or importance, there seems to be no reason or method of discriminating between duties. It seems to me that the only way the Interest theorist can preserve the concept of a right in a way consistent with his/her other commitments is by relying on the strong version of VAT1 of the value added thesis, that is by distinguishing between different kinds of interests and reserving the special protection afforded by rights for some kinds only. The argument so far has been uncharitable to the Interest theory of rights and perhaps it can be shown to be unjustifiably harsh and ultimately mistaken. But even if we adopt a more charitable perspective and grant the Interest theorist the argument that a shared interest can ground a right, it seems to me that this is not enough to justify a group right, that is the right of a group qua group. There may be good reasons why we should grant a (legal) right to a (random) collection of people sharing an interest but if there are any moral rights at all there, there are good reasons to think that they are rights of individuals. It seems to me that it is perfectly plausible to think that the duty to build a cycle path is a duty owed to many individuals rather than a group. It may be odd to say that an individual has a right to the whole cycle path. Indeed some may think that because of the kind of good that it is a cycle-path or other goods cannot be the object of individual rights. However, I find nothing implausible in the view that all cyclists in a city have individual rights to a cycle path. This is not to say that each of them has a right to be provided with a cycle path but rather that the duty to build the cycle-path correlates with other individual rights, such as a right to a share of resources. The sum of individual 30 I take that regardless of which theory of rights one subscribes to, it is the case that not all of one s duties correspond to someone s right. See J.J. Thomson The Realm of Rights, Harvard University Press, Cambridge, MA & London, England, 1990, especially chapter 4 Enforcing claims, where she convincingly argues for the conclusion that The realm of rights is squarely within the morality of action, but is not identical with it, p In other words, duties correlative to rights are only a subset of all our moral duties. More generally, however, it seems to me that the Interest theory does not have the resources to justify a right. It is able to identify the right holder by pointing at the party who benefits from the performance of a correlative duty but it can only show that an interest gives rise to a right if it accords some interests a special value. I take it also that whichever theory of rights one subscribes to, rights do have a special place in the moral vocabulary of a rights theorist at least. 15

16 rights can entail, I think, a duty to provide a cycle-path. One need not resort to mysterious explanations about shared interests. It could be argued, however, that some rights at least are defined by their object rather than their subject. The claim is that rights to some goods can only be group rights, if there are any rights at all. I will briefly examine that argument. b) Rights and goods As I mentioned in the beginning of this paper, a group right belongs to the group qua group rather than to its members severally. It seems to me that the argument from a shared interest discussed above does not establish the right of a group qua group. It may be the benefit of many people which is (directly) relevant for the existence of the duty; but that just means that it takes many people to justify the imposition of a duty but that is not to say that the rights involved are not rights of individuals. 31 Many of what we would normally consider group rights, such as linguistic or religious rights, are rights held by individuals even though it may be a shared interest that grounds such a right. According to Jones, it is because the right is held jointly that it is a group right but I see no reason why a right based on a shared interest has to be jointly held and Jones offers no argument as to why the right would be held jointly. Perhaps if the strong interpretation of VAT 1 discussed in the previous section had been plausible, it can be argued that since the interests of many people combine to give rise to a qualitatively different interest, the right is held jointly by the group of people who share in the interest. In other words, had we been able to conceive of the shared interest as a nonindividualisable interest, essentially a different interest from the many interests it was based on, we might have had a strong case for claiming that the right justified by it was a collective one. But that strategy didn t seem promising and I offered what I take to be a plausible interpretation of the rights involved. Whether my particular account of the 31 This line of argument becomes even more plausible when we think about the possibility that other people s interest may also count in the justification of the right, as Raz sometimes insists. The cyclists right to a cycle-path is thus best seen, by Raz s own account, as an individual right of each cyclist whose justification owes to the fact that other people s interests are served by the performance of this duty as well. Thus, each interest gains weight from the interests of other individuals. See Raz Ethics in the Public Domain, Clarendon Press, Oxford, 1994, pp

17 individual rights involved is convincing or not, it seems to me that any rights to a cyclepath are best seen as individual rights. Surely, if one individual is denied access to the cycle-path, s/he can legitimately complain that her/her rights are denied assuming that any rights are involved here. This is not to make the assumptions central to the Choice theory of rights, namely that the right holder is the one who can enforce it. The point is rather that the duty to provide a cycle-path is owed to individuals severally rather than to a group. So, the argument from shared interest doesn t necessarily establish a group right. But a possible reason why a right based on a shared interest is a group right is that the right is to a public good. 32 A public good is non-excludable and non-rival in consumption and is therefore a more likely candidate for a group right, if it can be the object of a right at all. There are two reasons this: first, it is unlikely that an individual interest can justify a right in a public good and second, since a public good is nonexcludable, its provision benefits a group of people at once; such benefits may be indivisible. But it is quite plain that there is no logical inconsistency in having individual rights to public goods; unpolluted air is a classic example of a public good to which individuals can have rights. 33 So, the class of goods that are uniquely suited for group rights may need to be further restricted and Raz claims that it is only goods that are inherently public, rather than contingently so, that are in this category. Technologies can be devised to exclude people from breathing clean air, for example, so that good is only contingently public. Some goods, however, are by their very nature non-excludable; examples of such goods include a cultured or a tolerant society. The claim here is that the fact that a good is collective in this way, i.e. is only available collectively by its very nature, makes it an unsuitable candidate for an individual right. But there still doesn t seem to be any reason why there cannot be individual rights to goods that are inherently non-excludable and non-rival. Jones puts forward an example of a sacred site to illustrate that point: if there was only one person for whom the site was sacred, that person could have individual rights in respect of the site, even though the site qualifies as an inherently public good. It may be the case that an individual right to a public good cannot be 32 See Raz Right-Based Moralities in J. Waldron (ed.) Theories of Rights, Oxford University Press, 1984, p See Denise Réaume Individuals, Groups and Rights to Public Goods in University of Toronto Law journal, vol. 38, no. 1, 1988, p

18 justified, at least not on the Interest theory, but the point here is that it is not the nature of the good that makes it conceptually impossible for an individual to have a right to such a good. One may claim, in response, that it is a further subset of these goods that entail group rights, i.e. participatory or communal goods. 34 These goods are such that they are available to an individual only if that individual participates in its enjoyment with others. 35 Examples of such good are a convivial party, friendship, speaking a language. The claim here seems to be, just like in the case of public goods, that since these goods cannot be consumed privately (and in some cases at least produced in isolation from others) they must be the object of a group right; I take it that the underlying premise is again that the duty corresponding to the right, if imposed, will benefit the group rather than an individual. 36 But again, it can be argued that logically, as opposed to morally, there seems to be nothing amiss in my having a right to a participatory good which entitles me to require others to participate in it so that I can enjoy the participatory good 37 There are of course normative issues with individual rights to collective or participatory goods. Thus, Réaume claims that it is because the good is the participation 38 that the rights should be group rights and Waldron suggests that it is 34 Participatory goods are a sub-set of public goods, which involve activities that not only require many in order to produce that good but are valuable only because of the joint involvement of many (emphasis added). Such a good is friendship. See Denise Réaume Individuals, Groups and Rights to Public Goods. See also Waldron Can communal goods be human rights in his Liberal Rights. 35 P. Jones Group rights, public goods and participatory goods, p To my mind, that premise does not supply the necessary step for reaching the desired conclusion but I cannot find a more convincing conceptual argument in the literature. For a discussion of the logical gap involved in moving from the claim that a participatory group cannot be enjoyed on one s own to the claim that only groups can have rights to such goods and an attempt to supply the missing steps, see James Morauta Rights and participatory goods. Unfortunately, I find Morauta s attempt unsatisfactory; the missing steps he supplies do rely implicitly on a Choice theory of rights, in spite of his protestations to the contrary. So, he does not manage to rescue the Interest theory s account of group rights. 37 Ibid., p. 15. Jones also notes that some participatory goods may require willing participation to be the goods that they are and do not therefore lend themselves to this sort of right. I take this to mean that they do not lend themselves to any sort of right. I take it that if the goodness of a good is defined by willing participation no claim of right can make that happen, which is why we do not think we have rights to friendship or love. The right could be only a right against outsiders to not interfere with the production and consumption of the good but this will be a negative claim right as Jones puts it and it is perfectly intelligible as an individual right. However, a claim to the good in question will have to be a claim against members of one s group, that is a claim that they participate in the production of the good and although that as well can be an individual claim, there are normative reasons for disallowing that possibility. 38 Réaume op. cit., p

19 because of the intersubjectivity that defines participatory goods. But these are normative claims; it is not conceptually impossible for me to have a right to be thrown a birthday party or to be befriended by some people although it s probably wrong to claim such a right. 39 Jones argues that only rights in respect of participatory goods can be individual rights, while rights to the good can only be collective ones. 40 Thus, I can have an individual (liberty) right to tango but not an individual right to the good of tangoing. The good of tangoing is a good accessible to me only as a joint exercise with someone else. Hence, arguably, I can only have a claim right to that good only jointly with someone else not as an individual. 41 But the second sentence does not follow from the first unless further assumptions are made; in this case, the implicit assumption is that the right would be to a positive experience on the part of others which Jones denies a few paragraphs above and that it is impossible to demand that of people. Nevertheless, for Jones the implicit assumption that best explains why rights to participatory goods cannot be individual rights is an assumption about the relative moral standing of the participants. If those participants enjoy equal moral standing, such that they are equal claimants to the good, then it cannot be the case that one of them alone has a right to the good; rather a right to the good must be one in which they share. 42 Even if we agree with the normative arguments presented here, they do not undermine the point that rights to participatory goods can be individual rights. 43 And if there are legitimate normative concerns about the notion of individual rights to 39 It is probably impossible to have a right that others like me or that they are enjoying my party but that s the case for any right not just an individual right. 40 I take it that by rights in respect to, he means Hohfeldian liberties and powers, while rights to something are Hohfeldian claims that others do certain things, rather than simply refrain from interfering. 41 Jones - Group rights, public goods and participatory goods, p Jones - Group rights, public goods and participatory goods, p I, for one, do not see the point of the normative objection. The claim is that for me to have an individual right to a participatory good is for me to have a right over the lives of others, and that is really at odds with the idea of equal moral standing, p. 17. But if rights to participatory goods existed, would they not be more easily conceived as rights of group members against each other? If they each had a right, even over the lives of others, that does not seem to undermine their equal standing. Moreover, I do not see why a group right (over the lives of people) is more acceptable than an individual right; if anything, I would think even more problematic from a normative point of view. Individual rights are normally rights against other people, and presumably over (some aspect of) their lives; we do not worry too much about that but we worry when groups can demand a certain behaviour from us. It seems to me that the main reason for that worry has to do with equal moral standing; when groups have claims against us it is normally the case that a section of that group, even a majority, imposes something on us and that affects the equal standing of individual members of a group. 19