In a departure from the mainstream methodology of a positivist-oriented jurisprudence, Collective Rights provides the first legal-theoretical treatment of this area. It advances a normative-moral standpoint of 'value collectivism' which goes against the traditional political philosophy of liberalism and the dominant ideas of liberal multiculturalism. Moreover, it places a theoretical account of collective rights within the larger debate between proponents of different rights theories. By exploring why 'collective rights' should be differentiated from similar (...) legal concepts, the relationship between collective and individual rights and why groups should be recognised as the third distinctive type of right-holders, it presents the topic as connected to the larger philosophical debate about international law of human rights, most notably to the problem of universality of rights. (shrink)

This article will present the argument for treating democratic states as moral and not only legal collective entities; that is, it will apply the theory of collective rights of cultural groups in a (closed) domestic political setting to democratic states in international relations. Numerous experiences by self-identifying cultural groups bear witness to the fact that morally important objectives are not always reached by merely treating individuals as the sole bearers of moral status. In order to prevent latent (...) cultural imperialism, many countries around the world have adopted various models of collective rights protection and policies of preferential treatment for these groups. This article will examine whether it is possible to make a parallel between cultural groups and democratic states; in particular, whether it is feasible to think of democratic states as moral entities and what the normative implications of such a view for contemporary international relations and trade would be. (shrink)

Two kinds of intrinsically valuable entities are distinguished - those that are ends-in- themselves (and therefore sacred) and those that are intrinsically good. It is suggested that it is the individual rather than the group that is sacred in the primary sense. To be sacred or an end-in-itself implies that the sacred entity must not be replaced by a potential entity even if more good can be promoted by doing so. It is suggested that only entities that have an irreducible (...) consciousness should be candidates for the sacred in the primary sense. If so, it would follow that groups are not sacred in the primary sense unless perhaps one regards them as unitary beings. It is argued that though groups have rights that are not reducible to the rights of individuals, this is consistent with the view that the ultimate justification of these rights is provided by an appeal to the interests of the relevant individuals; groups can be derivatively sacred. Activities of collectives can sometimes be intrinsically good, and such considerations, too, would be relevant to deciding upon which collectives should be retained and which modified or replaced. (shrink)

This Paper claims that, contrary to the common assumption of Anglo-American jurists, collective rights are secondary to a analytically and experientially prior culture. Culture constitutes the identity and content of a collective right. The thrust of my Paper examines the disjunction between collective rights and the culture constituting a collective right. The clue to the disjuncture is that a collective right is assumed to be a rule or principle signified or represented in a (...) written language. A rule or principle is a concept. A culture, in contrast, is constituted from an experiential knowledge in an unwritten language. -/- I raise two contexts where a collective right cannot be identified without a consideration the analytically prior culture of the social group protected by a collective right: peremptory norms in international law and affirmative discrimination clauses in constitutional law. I then highlight a crucially important factor generating the unwritten language of a culture: namely, the collective memories of a group. Although a personal memory is experienced in a context-specific event, a member of a group absorbs its collective memory. The collective memory of the group exists before one is a member. Such a memory may defer to some event centuries earlier. The event may possess a mythic or even false character which cannot be verified except as a myth or historical falsity. One cannot be accepted as a member of a group without the group’s collective memory. Shared assumptions and expectations characterise a collective memory generating a culture. Such assumptions and expectations constitute meant objects. Meant objects are not posted by some source 2 external to the individual members. Meant objects are experienced. A jurist cannot analyze the signified collective rights without examining the social culture said to be represented by the boundary of the collective rights. One may be able to rationally justify a collective right in terms of its source, such as a basic constitutional text, the regularity of behaviour of lawyers and judges or some ultimate concept such as dignity. Such a rational justification, however, does not address why an individual is obligated to defer to the collective rights of an in-group in a state. One has to examine the social-cultural assumptions and expectations presupposed in the content of such collective rights in order to understand why the rights are obligatory. Such an examination dissolves the traditional boundary of legal knowledge which has excluded cultural phenomena generating the collective rights. (shrink)

The first part of the paper focuses on the current debate over the universality of human rights. After conceptually distinguishing between different types of universality, it employs Sen’s definition that the claim of a universal value is the one that people anywhere may have reason to see as valuable. When applied to human rights, this standard implies “thin” (relative, contingent) universality, which might be operationally worked-out as in Donnelly’s three-tiered scheme of concepts–conceptions–implementations. The second part is devoted to (...) collective rights, which have recently become a new topic of the human rights debate. This part provides the basis of political–philosophical justification and legal–theoretical conceptualization of collective rights, as rights directly vested in collective entities. The third part dwells on the problem of universality of collective rights. It differentiates between the three main collective entities in international law—peoples, minorities, and indigenous peoples—and investigates whether certain rights vested in these collectives might, according to Sen’s standard, acquire the status of the universal ones. After determining that some rights are, in principle, plausible candidates for such a status in international law, this paper concludes by taking notice of a number of the open issues that still need to be settled, primarily by the cooperative endeavor of international legal scholars and legal theorists. (shrink)

Stephen May (2011) holds that language rights have been insufficiently recognized, or just rejected as problematic, in human rights theory and practice. Defending the “human rights approach to language rights”, he claims that language rights should be accorded the status of fundamental human rights, recognized as such by states and international organizations. This article argues that the notion of language rights is far from clear. According to May, one key reason for rejecting the (...) claim that language rights should be considered as human rights is the widespread belief that language rights are collective rights. In order to address this kind of objection, the collective character attributed to language rights must be carefully assessed, distinguishing two different views of what a collective right is. (shrink)

One of the primary views on our supposed obligation towards our descendants in the context of environmental problems invokes the idea of the rights of future generations. A growing number of authors also hold that the descendants of those victimized by historical injustices, including colonialism and slavery, have the right to demand financial reparations for the sufferings of their distant ancestors. However, these claims of intergenerational rights face theoretical difficulties, notably the non-identity problem. To circumvent this problem in (...) a relationship between present and future generations, some rights theorists replace future individual rights with such collective rights. Others advance the threshold conception of harm in discussing intergenerational relationships in general. Despite the significant implications these revisionist views might have, few efforts have been made to scrutinize their solidity. To plug such a gap in the literature, this paper examines to what extent the collective understanding of intergenerational rights is pertinent. I also explore the virtues and drawbacks of the threshold interpretation of harm. The paper concludes by suggesting that the motivation behind these and other versions of the rights theory suffers from the ambiguity of a traditional dichotomy between perfect and imperfect duties. (shrink)

The main purpose of this paper is to argue that there are no minority moral rights. Rights claimed to be minority moral rights, such as land rights and hunting rights of indigenous peoples, and the political and language rights of some minority cultures, turn out to be either collective moral rights which are not also minority moral rights, or else to be merely (possibly morally justified) legal minority rights which are (...) not also minority moral rights. (shrink)

Most states are multination states, and most peoples are stateless peoples. Just as collectives can behave as sovereign states only if they are recognized by the international community, liberal multination states must recognize stateless peoples in order to determine their political status within that state. There is, however, no agreement on the kind of principles that should be considered, especially under classical liberalism, which gives individuals preeminence over groups. Liberal theories that attempt to accommodate collective rights are often (...) based on a comprehensive version of liberalism that subscribes to moral individualism. Within such a framework, they develop a watered-down concept of collective rights. In A Liberal Theory of Collective Rights Michel Seymour explores the theoretical resources of John Rawls’s political liberalism and shows that this particular approach can accommodate genuine collective rights. By Rawls’s account, Seymour explains, peoples are moral agents and sources of valid moral claims and are therefore entitled to collective rights. These kinds of rights translate, in the constitution of the multination state, to a true political recognition for stateless peoples. Ultimately, A Liberal Theory of Collective Rights answers three important questions: Who is the subject of collective rights? What is the object of collective rights? And can they be institutionalized in real politics? (shrink)

This review article discusses the conception of collective rights necessary to ground contemporary entrenchments of minority educational rights, Indigenous rights and collective bargaining rights, as discussed in Miodrag Jovanović’s book, Collective Rights: A Legal Theory. Jovanović argues for a role for value collectivism in elucidating a rationale for the entrenchment of rights held by what he conceives of as pre-legally existing groups with interests not reducible to those of their individual members. (...) This approach can offer an explanation for the entrenchment of minority educational rights and Indigenous rights. The article extols Jovanović’s attempt to grapple with an explanation for rights not explained within standard liberal theory, even in Will Kymlicka’s attempt to justify minority rights within liberalism. The review also critiques the argument offered by Jovanović. First, the review argues that a full-fledged adoption of value collectivism is not necessary to provide a justification for irreducibly collective rights and that the unnecessary adoption of such a theoretical construct may, in practical terms, work counter to the ongoing entrenchment of the rights it seeks to justify, thus becoming what it will categorize as a ‘self-threatening theory’. Second, the review argues that Jovanović’s stark division of rights held by pre-legally existing groups and legally constituted collective entities undermines his account’s ability to explain collective bargaining rights of trade unions that are entrenched in some jurisdictions. (shrink)

This paper focuses on Quebec language legislation which has the effect of prohibiting the use of the use of English on signs. The controversial “Frenchonly” sign law is considered in spelling out an argument for collective rights and assessing some of the obstacles which a collective rights thesis must overcome. No attempt is made in this discussion to resolve the question of the relative weight of the collective and individual rights which come into conflict (...) in this situation. No doubt this latter is itself a difficult task. If the argument of this paper is sound, however, a solution phrased wholly in terms of individual rights and the public good is simpler only because it omits important dimensions of the problem. (shrink)

The obligations set by the individual right to health are likely to conflict, at least if states are its addressee, with the obligations set by the collective rights to self‐determination that certain sub‐state communities have (or should be recognized). In this paper, I argue that conceiving of the right to health and of collective rights to self‐determination as both aiming at the promotion of individual agency might help us alleviate this particular problem. To do so, I (...) first explain how we can conceive of the right to health and of collective rights to self‐determination as protecting crucial aspects of individuals' agency. It is because both health and the capacity to participate in particular collectives are important ways in which our agency is enabled. I then argue that this conception of the purpose of those rights offers a principle to guide our practical deliberation when the protection of health and the protection of collective self‐determination seem to conflict. Finally, I specify how I think this principle might guide us when it comes to understanding the obligations that the right to health sets for the state towards members of selfdetermining sub‐state communities, both in terms of the provision of healthcare goods and services and the provision of the underlying determinants of health. (shrink)

The article distinguishes metaphysical from practical communitarianism. Metaphysical communitarianism is alleged to involve a concealed ideological element, which leads its adherents to stereotypes when trying to capture the essence of the modern self. The claim is examined that minorities, or other ethnic and cultural groups have collective rights, either moral or legal in nature. Justifications of collective rights resorting to the value of cultural identity are said to be in need of explaining why the proper way (...) of protecting such value is through rights. It is argued that practical communitarianism’s case for collective rights needs embracing meta-normative and normative relativism, whose application to political action yields consequences at odds with widespread ethical intuitions. (shrink)

While universal healthcare provisions are the global norm rather than the exception, the United States exists in the latter category. The paradox remains that while the right to health is both increasingly implemented and recognized on a global scale, the United States seems to run farther away from the arguments and global examples that might pave its way. I suggest that an understanding of the imposition of healthcare as “coercive,” and hence as an impingement on individual agency, activates its criticism (...) as an inhibition of freedom that in turn motivates the libertarianism at the heart of the dominant, market‐based approach to health insurance provisions. At least one of the underlying assumptions of this view is that universal healthcare would impose or impinge on individual rights, and that such an impingement is a violation of autonomy. In this article, I aim to challenge this assumption by suggesting that the pitting of individual health rights against collective burdens stems in part from a related assumption of general health or welfare on the part of the collective: that disability and debility alike are anomalies or anomalous to the general health of the population. In other words, it will be my contention that individual health rights are only at odds with “collective rights” when the collective is perceived to be able‐bodied. (shrink)

This chapter contains sections titled: The Current Conundrum The Objects of Our Study The Legal Framework So Far Special Challenges of DNA Property and Parts Autonomy, Individuality, and Personhood Economics and the Marketplace for Genes Ethics and Method An Outline for the Investigation The Challenge Ahead.

Life on earth is bound together by a common heritage, centered around a molecule that is present in almost every living cell of every living creature. Deoxyribonucleic acid (DNA), composed of four base pairs, the nucleic acids thymine, adenine, cytosine, and guanine, encodes the data that directs, in conjunction with the environment, the development and metabolism of all nondependent living creatures. Except for some viruses that rely only on ribonucleic acid (RNA), all living things are built by the interaction of (...) DNA and RNA within cells and their environments. There is no worldwide consensus yet as to whether portions of the human genome should be granted intellectual property protection, as indeed they are in the United States and a number of other nations. DNA posed numerous challenges to the legal framework for patent protection and may suggest developing an entirely new social and legal category recognizing its uniqueness. (shrink)

Michel Seymour fills an important gap in Rawlsian theory. In fact, his Rawls inspired normative theory of collective rights is unprecedented. Likewise, his ideal theory of a primary right to internal self-determination (ISD) is a welcome contribution to the issue of collective rights. That said, his non-ideal theory – a remedial right only to secession – seems rather toothless in cases of noncompliance. In particular, Seymour leaves us with no guidance in the case of transition countries (...) and situations of tension where we need to know whether the ISD of the minority (the stateless) people is enabling or disabling for the ISD of the majority (the state owning) people. The paper concludes that borrowing from Aristotle, as Rawls does, offers more in the way of guidance when it comes to these issues. (shrink)

In Latin America, rights to local political participation in many indigenous communities are not simply granted, but rather “earned” through acts of labor for the community. This is the case in the state of Oaxaca, Mexico, where almost three-fourths of municipalities elect municipal authorities through custom and tradition rather than secret ballot and universal suffrage. The alarmingly low rate of women’s formal participation in these municipalities has garnered attention from policymakers, provoking a series of legislative reforms designed to increase (...) women’s roles in local politics. However, these initiatives often miss their mark. Focused on a liberal model of women as individual rights-bearers, they fail to understand the complex ways in which gendered labor influences political participation in nonliberal contexts. This article examines a case in which indigenous women reject such an initiative because it would exacerbate their exploitation within the local terms of gendered collective labor instead of promoting equality. It thus explains potential barriers to indigenous women’s political leadership at the local level and suggests ways in which gender equality can be promoted in nonliberal contexts. (shrink)

In this paper, I argue that a well-known objection to subsistence rights developed by Onora O'Neill - namely, that such rights would generate obligations without an obligation-bearer, can be answered if we take such rights to impose an obligation on the world's population, taken collectively.

The development in 1996 of a new generation of antiretroviral drugs was a major pharmaceutical advancement in the struggle against the epidemics of HIV and AIDS. However, due to high costs, access to these new drugs was almost impossible for most people living with HIV or AIDS. This situatiowhas been even more dramatic for those living with HIV/AIDS in poorer countries. Many of the organizations that are fighting for the rights of those with HIV have since developed human (...) class='Hi'>rights advocacy and legal strategies to try to achieve universal access to treatment. These organizations are also fighting for states’ compliance with human rights obligations under health-related treatises and conventions. This paper draws upon the experience gained in Latin America, focusing on the legal strategies that have been explored in Venezuela and the legal consequences for domestic law. (shrink)

Collective Identity, Oppression, and the Right to Self-Ascription argues that groups have an irreducibly collective right to determine the meaning of their shared group identity, and that such a right is especially important for historically oppressed groups. It provides a novel approach to issues of identity politics, group rights, and racial identity, one which combines and develops the insights of contemporary critical theory and race theory, and will thus be of special interest to scholars in these fields.

The development in 1996 of a new generation of antiretroviral drugs was a major pharmaceutical advancement in the struggle against the epidemics of HIV and AIDS. However, due to high costs, access to these new drugs was almost impossible for most people living with HIV or AIDS. This situatiowhas been even more dramatic for those living with HIV/AIDS in poorer countries. Many of the organizations that are fighting for the rights of those with HIV have since developed human (...) class='Hi'>rights advocacy and legal strategies to try to achieve universal access to treatment. These organizations are also fighting for states’ compliance with human rights obligations under health-related treatises and conventions. This paper draws upon the experience gained in Latin America, focusing on the legal strategies that have been explored in Venezuela and the legal consequences for domestic law. (shrink)

In their paper “Brain Data in Context: Are New Rights the Way to Mental and Brain Privacy?” Susser and Cabrera (2024) argue against the notion that specific rights may be necessary to protect “brai...

This volume brings together a wide-ranging collection of the papers written by Jeremy Waldron, one of the most internationally respected political theorists writing today. The main focus of the collection is on substantive issues in modern political philosophy. The first six chapters deal with freedom, toleration and neutrality and argue for a robust conception of liberty. Waldron defends the idea that people have a right to act in ways others disapprove of, and that the state should be neutral vis-á-vis religious (...) and ethical systems. The chapters that follow are concerned with socio-economic rights. Waldron argues that poverty and homelessness are not to be understood apart from the value of freedom. On the contrary our moral response to them should be based on the same values that underlie traditional liberal philosophy. (shrink)

Human Rights and Common Good collects John Finnis's wide-ranging work on central issues in political philosophy. The subjects explored include the general theory of political community and justice; the nature and role of human rights; national territory and migrants' and non-citizens' rights; the justification of punishment; and the public control of euthanasia, abortion, and marriage.

Human Rights and Common Good collects John Finnis's wide-ranging work on central issues in political philosophy. The subjects explored include the general theory of political community and justice; the nature and role of human rights; national territory and migrants' and non-citizens' rights; the justification of punishment; and the public control of euthanasia, abortion, and marriage.

Governments around the world collect huge amounts of personal data from their citizens for counterterrorist purposes. While mining this data has arguably increased the security of populations, the practices through which these data are currently collected in many countries have been criticised for violating individuals’ rights to privacy. Yet it is not clear what a permissible data collection regime would look like and thus also how we could reform existing regimes to make them morally acceptable. This article explores a (...) number of ways in which we might justify a data collection regime to those affected in spite of the setbacks to their privacy. In contrast to existing justifications, I argue that individuals can be asked to surrender their personal data as a requirement of reciprocity in a cooperative system in which they gain security from others doing likewise. Relying on this justification, though, has significant implications for how we should reform existing data collection regimes. In particular, more stringent limits will need to be placed on the forms which these regimes can legitimately take. (shrink)

In confronting the insalubrious ramifications of globalization, human rights scholars and activists have argued for greater national and international responsibility pursuant to the human right to health. Codified seminally in Article 12 of the International Covenant on Economic, Social and Cultural Rights, the right to health proclaims that states bear an obligation to realize the “highest attainable standard” of health for all. However, in pressing for the highest attainable standard for each individual, the right to health has been (...) ineffective in compelling states to address burgeoning inequalities in underlying determinants of health, focusing on individual medical treatments at the expense of public health systems. This article contends that the paradigm of individual health, focused on a right to individual medical care, is incapable of responding to health inequities in a globalized world and thereby hampers efforts to operationalize health rights through public health systems. While the right to health has evolved in international discourse over time, this evolution of the individual right to health cannot address the harmful societal ramifications of economic globalization. Rather than relying solely upon an individual right to medical care, envisioning a collective right to public health – a right applied at the societal level to address underlying determinants of health – would alleviate many of the injurious health inequities of globalization. (shrink)

The possibility of collective action is essential to human freedom. Yet, as Rousseau famously argued, individuals acting together allow themselves to depend on one another’s choices and thereby jeopardize one another’s freedom. These two facts jointly constitute what I call the normative problem of collective action. I argue that solving this problem is harder than it looks. It cannot be done merely in terms of moral obligations; indeed, it ultimately requires putting in place a full-fledged system of contract (...) rights. The point has important ramifications for contract theory. The role that contract rights play in reconciling collective action and freedom turns out to be crucial to understanding how—and by whom—these rights can legitimately be enforced. It also explains why expectation damages should be the standard remedy for breach of contract. (shrink)

In this paper I offer a teleological account of social institutions. Specifically, I argue that: (a) social institutions have as their defining purposes or ends the provision of collective goods, and; (b) participants in social institutions have moral rights to such collective goods, and the moral rights in question are individual, and jointly held, moral rights.

The article analyzes ethnic data collection pertaining to criminal justice in Hungary. With such a sensitive and delicate issue at hand, Hungary has decided on an evasive approach, resisting ethnic data collection by law enforcement authorities. The author argues that this approach has become one of the obstacles in fighting discrimination and ethnic profiling. Moreover, Hungary’s restrictive approach to ethno-national data classification also causes severe constitutional problems in other, noncriminal legal circumstances, where ethnic data is used in the context of (...) additional rights and affirmative protection provided for ethno-national minorities. The first part of the article describes general problems relating to ethnic data collection and analyses of the Hungarian minority protection framework, in particular, the minority self-government structure (a unique constitutional institution). The second part focuses on the criminal justice system; the author’s aim is to show that prohibiting the official recognition and collection of data on ethnicity by criminal justice authorities has potentially ethnically discriminatory consequences. (shrink)

This volume brings together a wide-ranging collection of the papers written by Jeremy Waldron, one of the most internationally respected political theorists writing today. The main focus of the collection is on substantive issues in modern political philosophy. The first six chapters deal with freedom, toleration and neutrality and argue for a robust conception of liberty. Waldron defends the idea that people have a right to act in ways others disapprove of, and that the state should be neutral vis-á-vis religious (...) and ethical systems. The chapters that follow are concerned with socio-economic rights. Waldron argues that poverty and homelessness are not to be understood apart from the value of freedom. On the contrary our moral response to them should be based on the same values that underlie traditional liberal philosophy. (shrink)

The right to health was codified in Article 12 of the International Covenant on Economic, Social and Cultural Rights as an individual right, focusing on individual health services at the expense of public health systems. This article assesses the ways in which the individual human right to health has evolved to meet collective threats to the public's health. Despite its repeated expansions, the individual right to health remains normatively incapable of addressing the injurious societal ramifcations of economic globalization, (...) advancing individual rights to alleviate collective inequalities in underlying determinants of health. By examining modern changes to underlying determinants of health, this article concludes that responding to globalized health threats necessitates a collective right to public health. (shrink)

National governments in almost all developing countries have begun to decentralize policies and decision making related to development, public services, and the environment. Existing research on the subject has enhanced our understanding of the effects of decentralization and thereby has been an effective instrument in the advocacy of decentralization. But most analyses, especially where environmental resources are concerned, have been less attentive to the political coalitions that prompt decentralization and the role of property rights in facilitating the implementation of (...) decentralized decision making. By comparing decentralization in four cases in South Asia—Forest Councils in Kumaon in India, Joint Forest Management in India, the Parks and People Program in Nepal's Terai, and Community Forestry legislation in Nepal—this article provides answers to two questions: When do governments decentralize environmental decision making? and Which types of property rights must be devolved if decentralized decision making is to be effective? (shrink)