Form Of Group Rights Essay, Research Paper
There are two main forms of group rights, characterised by the way in which they are distributed and exercised. The first example of group rights is a differential distribution of individual rights. In this model, an individual may have more rights than others on the basis of some kind of ’selection criteria.’ The most common being on the grounds of race or ethnicity, for instance in the former South Africa, rights were distributed on a decreasing scale, according to the colour of a persons skin. The second type of group right is a right which a group exercises collectively, it is a right that everyone has, but no one person can use. So in one conception, adding group rights to individual rights would happen on an individual basis. Each person would have a sort of legal checklist of characteristics, making it possible for their specific case to be formulated for them. In the second conception, groups are pre-determined and fixed entities, which act cohesively on all matters.
The term ‘group rights’ refers quite specifically to a certain type of group. First there are the national minorities, who have been forcibly integrated into a dominant culture, and need to be protected from further assimilatory tactics. The second type of group is one which has been marginalised, discriminated against or disadvantaged in some way, either on sexual, racial or cultural grounds. Van Dyke noted two main problems with Britain’s post war liberal political theory, the first being the ‘veil of ignorance’ it adhered to (Stapleton). By starting from the basis of a homogenous society, in which there were no cultural, racial or even sexual boundaries, the theory (as put forward in Rawls’ ‘A theory of justice’) had created an theoretical world which couldn’t exist, thus rendering the rest of the theory useless. Other liberal writers such as Mill spoke of there being one minority, defined as intellectual dissidents who set their minds against the majority opinion. His suggestion was a system of proportional representation which would grant people the sort of recognition they deserved on the political scene. In fact, groups are now many and varied, characterised by a number of factors, and affected by more forms of inclusion and exclusion than mere political representation.
Inherent in the term is a notion of the overall value of a group, either to the individuals in it or the society as a whole. For a group to be granted rights over and above everyone else in a society, it must be recognised that their existence as a separate group is a useful and desirable thing, “Unlike the contractual obligations which underpin membership of a voluntary society, membership of a group defines ones very identity.” (Stapleton) That is the view of Iris Marion Young, who advocates special rights which would supplant equal treatment in public policy making. The idea is that these special rights would undermine the effects of oppression and discrimination felt by members of those groups.
While there can be no doubt that groups are valuable, this doesn’t come anywhere near solving the problem of how best to protect them. For instance her suggestion that groups could have he power to veto decisions which affect them directly would actually lead to a society in which every decision could be vetoed until the oppression and disadvantage is reversed. Although it is suggested that this could be an ‘introductory measure,’ what’s to stop a group vetoing an end to their right to veto. Also, as Kymlicka points out the oppressed groups she refers to would cover 80% of the US population, which defeats the point. One of the things to note here is that Young also advocates the ’self identification’ of groups, which is problematic because it undermines the validity of existing groups if a ‘counter group’ can just identify themselves as being marginalised by the first.
Significantly, Taylor thinks that genuine recognition, as opposed to misrecognition, requires an acknowledgment of the way in which anothers identity is constituted within a single, distinct group cultural structure. As Taylor says, the universal demand of equal respect “powers an acknowledgment of specificity,” where specificity refers to the distinct nature of different, specific cultural groups as the basis for individual identity. For Taylor, confusion comes from the inherently irresolvable tensions between conflicting views of human nature, each of which forms an indispensable foundation stone to contemporary liberal society:
“With the politics of equal dignity, what is established is meant to be universally the same, an identical basket of rights and immunities; with the politics of difference, what we are asked to recognize is the unique identity of this individual or group, their distinctness from everything else. The idea is that it is precisely this distinctness that has been ignored, glossed over, assimilated to a dominant or majority identity. And this assimilation is the cardinal sin against the ideal of authenticity.”
There is a danger, however, that group rights will cater for people purely on the basis of their collective identities, rather than individual ideals. While group identities are constantly being defined and redefined by the groups experiences, I believe there is a fundamental level at which all humans within civil society need to operate. By encouraging the law not to be (for instance) colour blind, there is a risk that the problem of stereotyping and marginalisation will just continue, after all the message would be that black people were inherently different to others, and so deserve special treatment. Individual political and civil rights could be undermined by the blanket application of group rights.
Macintyre has noted that, “The most striking feature of contemporary moral utterance, is that so much of it is used to express disagreements.” This highlights the relationship between the values of society, and the arbitrary means of achieving those values.
One of the clearest examples of a group right in American society is to be found in the rights of the disabled. During the past two decades, the rights of disabled students have become firmly established in American society with federal legislation requiring equality of educational opportunity. In 1990, the Americans with Disabilities act extended this protection to disabled persons at all stages of life. It bars discrimination against the physically and mentally disabled in public accommodations, private employment, and government services, and also requires most businesses, transportation systems, public accommodations, and telecommunications systems to make changes in their plants and equipment to facilitate access for the handicapped. The law raises important issues that bear on the controversy between utilitarian approaches to rights and the approaches of strong rights theorists. For a utilitarian, the rights of the disabled (or anyone else, for that matter) are to be guaranteed only to the extent that doing so maximizes overall utility. Yet the clear message of this Americans with Disabilities Act is that these rights are to be respected, even if doing so does not maximize utility in the narrow sense.
Kavka has argued that in modern societies such as our own in which the work ethic is central, self-respect is achieved primarily through the recognition that comes from workplace achievements. Given that the handicapped are less likely to be able to achieve appropriate workplace recognition without enabling legislation, it is important to ensure equality of opportunity for them whenever possible.
Micheal Mann has argued that there is a flip-side to democracy, his fear is based on the ability of democratic peoples to act as mobs, and attack unpopular minorities. Both liberal and ethnic democracies have been guilty of this in the past. Ethnic democracies are most guilty of this, as they often refer to ‘the people’ in strongly racial or ethnic terms. When the American forefathers wrote the constitution, they -naturally- excluded blacks and native Americans. I say naturally, because for them ‘we, the people’ who they were trying to protect in the constitution were themselves. The democracy was founded on the rights of only one group. A state gives at least partial establishment to a culture when it decides which language to use in schooling.
Although it is most easily recognised in an organic democracy, genocide has frequently been a concomitant to a rapid mobilization in the name of democracy. The only way for a democratic society to protect the rights of minorities from ‘the people,’ is for an uneven distribution of rights, allowing the foundations of human rights to be untouched by the additions necessary to protect minorities in (from) a democratic system.
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Ananya J, The capacity of international law to advance ethnic or nationality rights claims, Iowa law review, 75/3, 1990, 837-44