COLLECTIVE RIGHTS

Lecture of Dr. Nikolas K. Gvosdev

So far, both sets of human rights that we have looked at--civil/political and social/economic--have been defined primarily in terms of the individual. In other words, we have discussed how these rights apply to the generic individual without regard to his or her identity. In his work A Theory of Justice, John Rawls discusses how a society should determine what constitutes a basic set of rights (and thus constitutes justice): each of us should go behind a metaphorical "veil of ignorance" where we determine what we think our rights should be with no knowledge of what our actual economic standing, educational level, gender, or ethnic origin would be. Most international and national formulations of human rights are drafted in such a way as to apply to a generic individual.

Collective rights, however, do not start with the individual but rather with a specific group. Individuals are defined by their membership in that group, which thus differentiates them from others in society. Some collectives are formed by choice (religious affiliation in the United States, for example). Others are predetermined (the traditional understanding of gender, for example). Collective rights begin with the premise that the group has a claim to make. Historically, we can see numerous examples of group treatment (generally negative). In the Roman Empire, for example, Jews possessed the status of a religio licita, and as such enjoyed specific rights as Jews--the right not to work on the Sabbath, or to recognize the divinity of the Emperor. Such rights were granted to the Jewish collective and thus to the individual Jew of the Empire by virtue of being Jewish and thus distinct from Greeks or Syrians or Celts in the Empire. The Ottoman Empire was governed under the millet system, by which each group in the Empire was defined via their religious community. Thus, people living in the same town but belonging to different faiths had different rights and obligations on account of their group membership. A vague notion of collective rights also lay behind the concept of extra-territoriality, that people, by virtue of their citizenship, in foreign lands should be governed, not by local law, but by the laws of their originating state.

Under the influence of Enlightenment thought, which talked about human rights in general, universal terms, as something applying to all human beings, the system of "collective" rights began to break down. The Ottoman Empire, in theory, replaced the millet system in 1856 with a constitution guaranteeing equal rights and treatment for all its subjects regardless of national origin or religious affiliation. Likewise, in Europe, the movement for "Jewish emancipation" predicated its calls for equal treatment for Jews on the grounds of a single universal standard of rights and that each person deserved equal treatment as an individual.

World War II, and the experience of the Holocaust, however, brought group and collective rights back to the forefront. The Nazi attempts to wipe out entire cultures and ethnic groups raised the issue of whether cultures and nations have a right of survival and a right to transmit their values to a next generation. The Industrial Revolution also accelerated the process of securing group economic rights for workers, as they organized into unions and syndicates and sought to bargain collectively. Finally, there came the realization that certain groups of individuals, on account of gender or national or ethnic origin (claims later extended to groups defined by lifestyle), could never be assured an equal playing field as a "generic" individual and thus required special protections, since minorities, in a purely majoritarian system, could always be outvoted.

Collective rights are rooted, therefore, in an understanding of the human being both as individual but also as a part of a larger whole. It assumes that it is impossible (at least at the present time) to ensure that all people will be treated fairly and equally as individuals and that people will continue to be associated with the groups that they belong to. It also assumes that, in a representative system, there must be some commonality between the representative and the represented to ensure access.

Arend Lijphart coined the term "consociationalism" to describe the sharing of power between segments of society joined together by a common citizenship but divided by ethnicity, language, religion, or other factors. Some rights are given, therefore, to communities rather than to individuals, resulting in over- or under-representation for individuals from some areas of society.

One long-standing example is the creation of the United States Senate. Each state gets two senators (geographic equality). Alaska, with 400,000 people, has two senators, while California, with thirty million people, also has two senators. Alaskans are over-represented in the Senate by a factor of 100 (approximately) compared to Californians. This exists even though in the United States we uphold the principle of one person, one vote.

Countries that base their social system on Marxist principles often apply rights to collectives. For example, "workers" may be given additional opportunities, or special privileges extended to members of the Communist Party. Conversely, other social groups, such as landowners or businesspeople, might find themselves under disability.

A number of countries are openly and deliberately governed by the principles of "consociationalism." These include Belgium, South Africa, Zimbabwe, India, the Netherlands, Austria, Switzerland, Cyprus, Lebanon, and Northern Ireland (after Good Friday agreements of 1998). Different groups, whether on the basis of class, race, religion, or ethnicity, may be guaranteed access to institutions or not judged "equally" with others, on the grounds that such differences in treatment help to maintain balance and equity in society. Generally, the four key elements of consociationalism are:

1. sharing executive power among representatives of all significant groups
2. segmental autonomy: each group has a great deal of internal leeway
3. proportional representation and allocation of positions
4. minority veto on vital issues (mutual veto)

There are both positives and negatives to group rights. On the positive side, it can ensure that all groups are represented and have access to political and economic power. On the negative side, it discriminates against individuals and makes the conferring of benefits be based not only individual merit or achievement but on group identity. This can be especially problematic if talent is not distributed evenly among all groups in a particular field, but access to jobs or opportunities is restricted by quota.

Some good recent articles that deal with some of these issues: