Individual and group rights
|Rights by claimant|
|Other groups of rights|
Group rights, also known as collective rights, are rights held by a group qua group rather than by its members severally; in contrast, individual rights are rights held by individual people; even if they are group-differentiated, which most rights are, they remain individual rights if the right-holders are the individuals themselves. Group rights have historically been used both to infringe upon and to facilitate individual rights, and the concept remains controversial.
In Western discourse, individual rights are often associated with political and economic freedom, whereas group rights are associated with social control. This is because in the West the establishment of individual rights is associated with equality before the law and protection from the state. Examples of this are the Magna Carta, in which the English King accepted that his will could be bound by the law and certain rights of the King's subjects were explicitly protected.
By contrast, much of the recent political discourse on individual rights in the People's Republic of China, particularly with respect to due process rights and rule of law, has focused on how protection of individual rights actually makes social control by the government more effective. For example, it has been argued that the people are less likely to violate the law if they believe that the legal system is likely to punish them if they actually violated the law and not punish them if they did not violate the law. By contrast, if the legal system is arbitrary then an individual has no incentive to actually follow the law.
Group rights may have a negative connotation in the context of colonialism and legalised racism. In this context group rights award rights to a privileged group. For example, in South Africa under the former apartheid regime, which classified inhabitants and visitors into racial groups (black, white, coloured and Indian). Rights were awarded on a group basis, creating first and second class citizens.
In the United States individual rights for all by virtue of being human were only established after the Civil War, in 1868, with the Fourteenth Amendment to the Constitution. The Fourteenth Amendment was intended to secure rights for former slaves and amongst others includes the Due Process and Equal Protection clauses.
In the modern context, 'group rights' are argued for by some as an instrument to actively facilitate the realisation of equality. In a society where there is already equality before the law for all citizens, 'equality' is often an euphemistic reference to material equality (money & resources). This is where the group is regarded as being in a situation such that it needs special protective rights if its members are to enjoy living conditions on terms equal with the majority of the population.
Examples of such groups may include indigenous peoples, ethnic minorities, women, children and the disabled. This discourse may takes place in the context of negative and positive rights in that some commentators and policy makers conceptualise equality as not only a negative right, in the sense of ensuring freedom from discrimination, but also a positive right, in that the realisation of equality requires redistributive action by others or the state. In this respect group rights may aim to ensure equal opportunity and/or attempt to actively redress inequality.
An example this is the Black Economic Empowerment (BEE) program in post-Apartheid South Africa. The South African government seeks to redress the inequalities of Apartheid by giving previously disadvantaged groups (black Africans, Coloureds and Indians who are SA citizens) economic opportunities previously not available to them. It includes measures such as Employment Equity, skills development, ownership, management, socio-economic development and preferential procurement. The South African Bill of Rights, contained in the South African Constitution contains strong provisions on equality, or the right to equality, in Section 9. While stating that "discrimination... is unfair unless it is established that the discrimination is fair," section 9 also contains the provision that, "to promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken."
Government programs of reverse discrimination or positive discrimination exist in a number of countries: Non-quota race preferences are in place in the United States for collegiate admission to government-run educational institutions.
Group rights in such a context may aim to achieve equality of opportunity and/or equality of outcome. Such affirmative action can be controversial as they are in conflict with the absolute application of the right to equality, or because some members of the group that is intended to benefit from such programs criticizes or opposes them.
Organizational group rights
Besides the rights of groups based upon the immutable characteristics of their individual members, other group rights cater toward organizational persons, including nation-states, trade unions, corporations, trade associations, chambers of commerce, political parties. Such organizations are accorded rights which are particular to their specifically-stated functions and their capacities to speak on behalf of their members, i.e., the capacity of the corporation to speak to the government on behalf of all individual customers or employees or the capacity of the trade union to negotiate for benefits with employers on behalf of all workers in a company.
In the United States, the Constitution outlines individual rights within the Bill of Rights. In Canada, the Canadian Charter of Rights and Freedoms serves the same function. One of the key differences between the two documents is that some rights in the Canadian Charter can be overridden by governments if they explicitly do so according to Section 33 of the Charter. In practice, the Quebec government used the provision frequently in the early 1980s as a protest, and since then to maintain a ban on non-French public signs for five years. The government of Saskatchewan has used it for back-to-work legislation, and the government of Alberta sought to use it to define marriage as strictly heterosexual. In contrast, in the United States, no such override exists even in theory; even a constitutional amendment could not remove these rights entirely, as they are considered inalienable under the natural rights principles the Constitution is founded upon.
In the minarchist political views of libertarians and classical liberals, the role of the government is solely to identify, protect, and enforce the natural rights of the individual while attempting to assure just remedies for transgressions. Liberal governments that respect individual rights often provide for systemic controls that protect individual rights such as a system of due process in criminal justice. Collectivist states are generally considered to be oppressive by such classical liberals and libertarians precisely because they do not respect individual rights.
Ayn Rand, developer of the philosophy of Objectivism asserted that a group, as such, has no rights. She maintained that only an individual man can possess rights, and therefore the expression "individual rights" is a redundancy, while the expression "collective rights" is a contradiction in terms. In this view, a man can neither acquire new rights by joining a group nor lose the rights which he does possess. Man can be in a group without want or the group minority, without rights. According to this philosophy, individual rights are not subject to a public vote, a majority has no right to vote away the rights of a minority, the political function of rights is precisely to protect minorities from the will of majorities, and the smallest minority on earth is the individual.
Adam Smith, in 1776 in his book An Inquiry into the Nature and Causes of the Wealth of Nations, describes the right of each successive generation, as a group, collectively, to the earth and all the earth possesses. The Declaration of Independence states several group, or collective, rights of the people as well as the states, for example the Right of the People: "whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it" and the right of the States: "... as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do."
- Constitutional economics
- Corporativism - incorporates, via state compact, jurisdictions acceded both public & private characteristics
- Disability rights movement
- Gay rights
- Identity politics
- Indigenous rights
- Institutionalized discrimination
- Minority rights
- Racial segregation
- Rule according to higher law
- Special rights
- Three generations of human rights
- "Group Rights (Stanford Encyclopedia of Philosophy)". Plato.stanford.edu. 2008-09-22. Retrieved 2015-03-30.
- Jones, Peter (2010): "Cultures, Group Rights, and Group-Differentiated Rights," in: Dimova-Cookson, Maria / Stirk, Peter M. R. (eds.): Multiculturalism and Moral Conflict (Routledge Innovations in Political Theory, vol. 35, Routledge, New York), pages 38-57, at 39ss. ISBN 0-415-46615-6.
- Bisaz, Corsin (2012), The Concept of Group Rights in International Law. Groups as Contested Right-Holders, Subjects and Legal Persons (The Raoul Wallenberg Institute of Human Rights Library, vol. 41, Martinus Nijhoff Publishers, Leiden/Boston), p. 7-12. ISBN 978-9004-22870-2.
- "Constitution Acts, 1867 to 1982". Laws.justice.gc.ca. Retrieved 2015-03-30.
- "Library of Parliament Research Publications". Parl.gc.ca. Retrieved 2015-03-30.
- "Individual Rights —Ayn Rand Lexicon". Aynrandlexicon.com. Retrieved 2015-03-30.
- Stewart, Dugald.The Works of Adam Smith, London, 1811, Vol. 3, pp. 85-86.
- Barzilai, Gad (2003), Communities and Law: Politics and Cultures of Legal Identities. The University of Michigan Press, 2003. Second print 2005 ISBN 0-47211315-1