Group Rights 2008924311, 9780754623700, 9781315253770

Citation preview

Group Rights

Edited by

Peter Jones University ofNewcastle, UK

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LONDON AND NEW YORK

The International Library of Essays on Rights

Series Editor: Tom Campbell

Titles in the Series: Disability Rights

Human Rights and Corporations

The Right to a Fair Trial

Genocide and Human Rights

Indigenous Rights

Theories of Rights

Civil Rights and Security

Animal Rights

Peter Blanck

Thom Brooks

Anthony J Connolly David Dyzenhaus

Children's Rights, Volumes I and II

Michael D.A. Freeman

Language and Cultural Rights

Leslie Green

Consumer Rights

David Kinley

Mark Lattimer Ten Chin Liew

Clare Palmer

Social Rights

Lord Raymond Plant and Selina Chen

Gender and Rights

Deborah L. Rhode and Carol Sanger

Health Rights

Geraint Howells and lain Ramsay

Michael Se/gelid and Thomas Pogge

Group Rights

Bills of Rights

Peter Jones

Mark Tushnet

First published 2009 by Ashgate Publishing Limited Published 2022 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX! 4 4RN 605 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © Peter Jones 2009. For copyright of individual articles please refer to the Acknowledgements. All rights reserved. No pa11 of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Disclaimer The publisher has made every effort to trace copyright holders and welcomes correspondence from those they have been unable to contact. British Library Cataloguing in Publication Data Group rights. - (The international library of essays on rights) 1. Human rights 2. Social groups 3. Minorities - Civil rights 4. Minorities - Legal status, laws, etc. I. Jones, Peter 323 Library of Congress Control Number: 2008924311 ISBN 13: 978-0-7546-2370-0 (hbk) DOI: 10.4324/9781315253770

Contents Acknowledgements Series Preface Introduction PART I

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ix Xl

UNDERSTANDING GROUP RIGHTS

The Rights of Groups as Moral Entities 1 Peter A. French (1979), 'The Corporation as a Moral Person', American Philosophical Quarterly, 16, pp. 207-15. 2 Keith Graham (2001), 'The Moral Significance of Collective Entities', Inquiry, 44, pp. 21--41. 3 Dwight G. Newman (2004), 'Collective Interests and Collective Rights', American Journal ofJurisprudence, 49, pp. 127-63. 4 Michael McDonald (1991), 'Should Communities Have Rights? Reflections on Liberal Individualism', Canadian Journal ofLaw and Jurisprudence, 4, pp. 217-37. The Shared Rights of a Group's Members 5 Peter Jones (1999), 'Group Rights and Group Oppression', Journal ofPolitical Philosophy, 7, pp. 353-77. 6 Seumas Miller (1999), 'Collective Rights', Public Affairs Quarterly, 13, pp. 331--46. 7 Carol C. Gould (1997), 'Group Rights and Social Ontology', Philosophical Forum,28,pp. 73-86. 8 Leslie Green (1991), 'Two Views of Collective Rights', Canadian Journal of Law and Jurisprudence, 4, pp. 315-27.

5 15 37 75

99 125 141 155

PART II GROUP RIGHTS AND COLLECTIVE GOODS 9 Denise Reaume (1988), 'Individuals, Groups, and Rights to Public Goods', University of Toronto Law Journal, 38, pp. 1-27. 10 Andrei Marmor (2001), 'Do We Have a Right to Common Goods?', Canadian Journal ofLaw and Jurisprudence, 14, pp. 213-25.

171 199

PART III SCEPTICISM ABOUT GROUP RIGHTS 11 Andrew Vincent (1989), 'Can Groups be Persons?', Review ofMetaphysics,42, pp.687-715.

215

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12 Jan Narveson (1991), 'Collective Rights?', Canadian Journal ofLaw and Jurisprudence, 4, pp. 329-45. 13 Michael Hartney (1991), 'Some Confusions Concerning Collective Rights', Canadian Journal ofLaw and Jurisprudence, 4, pp. 293-314. 14 Chandran Kukathas (1992), 'Are There Any Cultural Rights?', Political Theory, 20, pp. 105-39.

245 263 285

PART IV GROUP RIGHTS, INDIVIDUAL RIGHTS AND HUMAN RIGHTS

15 Susan Moller Okin (2002), "'Mistresses of Their Own Destiny": Group Rights, Gender, and Realistic Rights of Exit', Ethics, 112, pp. 205-30. 16 Leighton McDonald (1998), 'Can Collective and Individual Rights Coexist?', Melbourne University Law Review, 22, pp. 310-36. 17 Steven Wall (2007), 'Collective Rights and Individual Autonomy', Ethics, 117, pp. 234-64. 18 Michael Freeman (1995), 'Are There Collective Human Rights?', Political Studies, 43, pp. 25-40. 19 David Miller (2002), 'Group Rights, Human Rights and Citizenship', European Journal ofPhilosophy, 10, pp. 178-95. PART V

323 349 377 409 425

APPLICATIONS

20 Avishai Margalit and Joseph Raz (1990), 'National Self-Determination', Journal ofPhilosophy, 87, pp. 439-61. 21 Will Kymlicka (1996), 'The Good, The Bad, and the Intolerable: Minority Group Rights', Dissent, pp. 22-30. 22 Duncan Ivison (2003), 'The Logic of Aboriginal Rights', Ethnicities, 3, pp. 321-44. 23 Nathan Brett (1991), 'Language Laws and Collective Rights', Canadian Journal ofLaw and Jurisprudence, 4, pp. 347-60. 24 John Edwards (1999), 'Collective Rights in the Liberal State', Netherlands Quarterly ofHuman Rights, 3, pp. 259-75. Name Index

445 469 479 503 517 535

Acknowledgements The editor and publishers wish to thank the following for permission to use copyright material. Canadian Journal of Law and Jurisprudence for the essays: Michael McDonald (1991), 'Should Communities Have Rights? Reflections on Liberal Individualism', Canadian Journal of Law and Jurisprudence, 4, pp. 217-37. Copyright© 1991 Canadian Journal of Law and Jurisprudence; Leslie Green (1991), 'Two Views of Collective Rights', Canadian Journal of Law and Jurisprudence, 4, pp. 315-27. Copyright© 1991 Canadian Journal of Law and Jurisprudence; Andrei Marmor (2001), 'Do We Have a Right to Common Goods?', Canadian Journal of law and Jurisprudence, 14, pp. 213-25. Copyright © 2001 Canadian Journal of Law and Jurisprudence; Jan Narveson (1991), 'Collective Rights?', Canadian Journal of Law and Jurisprudence, 4, pp. 329----45. Copyright © 1991 Canadian Journal of Law and Jurisprudence; Michael Hartney (1991), 'Some Confusions Concerning Collective Rights', Canadian Journal of Law and Jurisprudence, 4, pp. 292-314. Copyright© 1991 Canadian Journal of Law and Jurisprudence; Nathan Brett (1991), 'Language Laws and Collective Rights', Canadian Journal of Law and Jurisprudence, 4, pp. 347-60. Copyright© 1991 Canadian Journal of Law and Jurisprudence. Journal of Philosophy for the essay: Avishai Margalit and Joseph Raz (1990), 'National Self-Determination', Journal of Philosophy, 87, pp. 439-6 I. Copyright © 1990 Journal of Philosophy, Inc. Melbourne University Law Review for the essay: Leighton McDonald (1998), 'Can Collective and Individual Rights Coexist?', Melbourne University Law Review, 22, pp. 310-36. Copyright © 1998 Melbourne University Law Review. Review of Metaphysics for the essay: Andrew Vincent (1989), 'Can Groups be Persons?', Review ofMetaphysics, 42, pp. 687-715. Copyright© 1989 Review of Metaphysics. Sage Publications for the essays: Chandran Kukath as (1992), 'Are There Any Cultural Rights?', Political Theory, 20, pp. 105-39. Copyright© 1992 Sage Publications, Inc.; Duncan Ivison (2003), 'The Logic of Aboriginal Rights',Ethnicities, 3, pp. 321----44. Copyright© 1992 Sage Publications, Inc. Taylor and Francis for the essay: Keith Graham (200 I), 'The Moral Significance of Collective Entities', Inquiry, 44, pp. 21----42. Copyright© 2001 Taylor and Francis. University of Chicago Press for the essays: Susan Moller Okin (2002), '"Mistresses of Their Own Destiny": Group Rights, Gender, and Realistic Rights of Exit',Ethics, 112, pp. 205-30. Copyright © The University of Chicago Press; Steven Wall (2007), 'Collective Rights and

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Individual Autonomy', Ethics, 117, pp. 234----64. Copyright© 2007 The University of Chicago Press. University ofNotre Dame, Law School for the essay: Dwight G. Newman (2004), 'Collective Interests and Collective Rights', American Journal ofJurisprudence, 49, pp. 127-63. University of Toronto Press for the essay: Denise Reaume (1988), 'Individuals, Groups, and Rights to Public Goods', University of Toronto Law Journal, 38, pp. 1-27. Copyright© 1988 University of Toronto Press Ltd. Wiley-Blackwell for the essays: Peter Jones (1999), 'Group Rights and Group Oppression',

Journal ofPolitical Philosophy, 7, pp. 353-77. Copyright© 1999 Blackwell; Carol C. Gould (1997), 'Group Rights and Social Ontology', Philosophical Forum, 28, pp. 73-86; Michael Freeman (1995), 'Are There Collective Human Rights?', Political Studies, 43, pp. 25-40.

Copyright© 1995 Political Studies Association; David Miller (2002), 'Group Rights, Human Rights and Citizenship', European Journal ofPhilosophy, 10, pp. 178-95. Copyright© 2002 Blackwell. Every effort has been made to trace all the copyright holders, but if any have been inadvertently overlooked the publishers will be pleased to make the necessary arrangement at the first opportunity.

Series Preface Much of contemporary moral, political and legal discourse i s conducted in terms of rights and increasingly in terms of human rights. Yet there is considerable disagreement about the nature of rights, their foundations and their practical implications and more concrete controversies as to the content, scope and force and particular rights. Consequently the discourse of rights calls for extensive analysis in its general meaning and significance, particularly in relation to the nature, location of content of the duties and responsibilities that correlate with rights. Equally important is the determination of the forms of argument that are appropriate to establish whether or not someone or some group has or has not a particular right, and what that might entail in practice. This series brings together essays that exhibit careful analysis of the concept of rights and detailed knowledge of specific rights and the variety of systems of rights articulation, interpretation, protection and enforcement. Volumes deal with general philosophical and practical issues about different sorts of rights, taking account of international human rights, regional rights conventions and regimes, and domestic bills of rights, as well as the moral and political literature concerning the articulation and implementation of rights. The volumes are intended to assist those engaged in scholarly research by making available the most important and enduring essays on particular topics. Essays are reproduced in full with the original pagination for ease of reference and citation. The editors are selected for their eminence in the study of law, politics and philosophy. Each volume represents the editor 's selection of the most seminal recent essays in English on an aspect of rights or on rights in a particular field. An introduction presents an overview of the issues in that particular area of rights together with comments on the background and significance of the selected essays. TOM CAMPBELL Series Editor Professorial Fellow, The Centrefor Applied Philosophy and Public Ethics (CAPPE), Charles Sturt University, Canberra

Q Taylor & Francis �-

Taylor & Francis Group http://taylo ra ndfra n ci s.com

Introduction The assertion of rights brings with it a well-known repertoire of questions. What is a right and what are the implications of possessing a right? How do rights relate to duties? What rights do people have, or should they have, and how might we justify those rights? Are rights properly treated as 'absolute', so that they always trump competing considerations, or are they 'defeasible', so that extraordinarily, if not ordinarily, they can be overridden? All these questions arise for group rights as they do for individual rights, but the assertion of group rights raises issues special to itself. Prominent amongst these is the question of whether groups can possess rights. Many people think not. They hold that only human individuals can possess rights and that talk of group rights is either misplaced or merely a shorthand way of describing rights that are really the rights of sets of individuals. Ascribing rights to groups is, for them, no more acceptable than ascribing rights to flowers or forests or cars or computers. Others stoutly resist that scepticism. Some insist that we should regard groups as moral entities in their own right, so that groups, as right-holders, are analogous to individual persons. Their claim is not that all groups have rights; it is that some groups possess the features that are necessary and sufficient for having rights. If possession of those features is reason to ascribe rights to individuals, it is equally reason to ascribe rights to groups. Other proponents of group rights agree with the sceptics that groups as such have no independent moral status, but, unlike the sceptics, hold that individuals can hold some rights only in combination with other individuals and that those rights are properly conceived as group rights. If we allow that groups can have rights, we confront a further set of questions concerning how those rights relate to the rights of individuals. We ascribe rights to individuals partly so that their freedom and well-being shall not be sacrificed without limit to the pursuit of collective goals. Many people fear that, if we ascribe rights to groups, we destroy the protection that rights afford individuals; the right of a mere individual will not fare well when it comes into conflict with the right of a mighty group. Moreover, a group can wield its rights over its own members, so that it may be those inside the group who are burdened by the duties and liabilities imposed by a group's right. Defenders of group rights regard these fears as either misplaced or exaggerated. There is nothing, they point out, in the very idea of group rights that need threaten individuals. Indeed, group rights and individual rights are frequently grounded in the same concerns and aim to protect the same fundamental interests, so that the two sorts of rights can be allies rather than foes. If we turn to the relationship between group rights and human rights, we find a similar division of view. Some theorists insist that human rights are the rights of human individuals, so that there simply cannot be collective human rights, and many of those go on to characterize human rights as standing in an essentially antagonistic relation to collective claims, so that it is part of the purpose of human rights to fend off the claims of groups. Others see no need for rivalry between the two sorts of right. Still others argue that group rights can themselves be human rights: some of the things that matter most to human beings are goods that they share

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with others, and people can have collective human rights to those collective goods just as they can have individual human rights to important individual goods. The groups that might be alleged to have rights and that are subject to these controversies can be of various sorts. They can be organized groups, such as churches or business corporations or trade unions. But they can also be groups that lack any institutional form and that are distinguished only by features such as culture, ethnicity, language, gender, sexuality or shared belief. Sometimes rights have been ascribed to groups as intermediaries between individuals and the state, in which case group rights have been seen as checks on the power of the state. But group rights are also claimed at the level of the state itself. One of the most commonly asserted group rights is the right of national self-determination - the right of a nation to be an independent state that can conduct its affairs free from external control or interference. Group rights have also been ascribed to minorities, especially in recent years. Sometimes 'the rights of a minority' refer only to the rights of individuals who find themselves in a minority. Their individual rights are described as minority rights because the protections and guarantees provided by those rights matter most when individuals are in a minority position. But sometimes the rights ascribed to a minority relate to goods that are collective to the minority, in which case the minority's rights will be collective rather than individual in form. For example, much of the contemporary debate about group rights has focused on cultural minorities, in part because cultures are necessarily group phenomena and some of the rights that relate to respecting cultural differences make most sense as collective rights. Similarly, an indigenous minority frequently presents the larger society within which it exists with a distinct collective form of life; respecting that form of life typically entails extending to the minority a right to a significant measure of collective self-rule, which can only be a group right. Another sort of group that has attracted the attention of proponents of group rights are linguistic minorities, such as French-speakers in Canada or Welsh-speakers in Britain. Rights are sometimes claimed to special measures designed to protect and maintain a minority language, and to enable or facilitate its use in the larger society's public processes. It is hard to conceive those as other than group rights. This volume brings together several of the most significant contributions to contemporary thinking on group rights. Together, the essays assembled here grapple with, and take stands on, all the highly controversial issues that surround group rights.

What is a Group Right? In confronting those issues, we first need to consider what a group right is. Simply stated, a group right is a right that is held by a group as a group rather than by its members severally. The 'group' in 'group rights' describes the nature of the right-holder. Thus group rights are standardly contrasted with rights held by persons as individuals. A group right is not a mere aggregation of individual rights. In one conception of group rights, they are rights held jointly by the individuals who make up the right-holding group; but even in that conception, the rights that individuals hold jointly with others are rights that they do not possess as separate individuals. Individually held rights are commonly associated with group memberships or group identities and that can lead to confusion between individual rights and group rights. For example, the right to vote in elections in the United States is a right unique to US citizens, but

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the mere fact that it is a right unique to that group does not make it a group right rather than an individual right. The right of US citizens to vote in US elections is an individually held right. Similarly, the right to use the facilities of a sports club is commonly limited to the members of the club, but the members possess and exercise that right as individuals, not as a group. Nowadays, people sometimes conflate group rights with what Will Kymlicka (1995) has described as 'group-differentiated' or 'group-specific' rights. That, too, is a mistake. As we have just seen, rights can be specific to a group without being group rights. In fact, Kymlicka uses those terms to describe a more particular sort of right: a right that a society accords to a minority - typically an ethnic or cultural minority - that it does not accord to other members of the society. Often those group-differentiated rights are also group rights. For example, if a minority is accorded a special right to govern its own affairs, that collective right of self-government will be both a group-differentiated and a group right. But other group­ differentiated rights can be individual rights. In Britain, for example, turban-wearing Sikhs are uniquely entitled to ride a motorcycle without wearing a crash helmet, but that group­ differentiated right is one possessed and exercised by individual Sikhs, not by Sikhs as a group. Rights are distinguishable according to the type of ground upon which they are held. Thus we distinguish rights as legal, moral, conventional, customary and so on. Any of those labels might apply to group rights. Group rights are least controversial when they are legal rights since, if a legal system vests rights in a group, we need be in no doubt that, within that legal system, the group has rights. However, that does not free legal group rights of all controversy, since we can still ask whether a group should be vested with legal rights - a question that raises many of the controversies already described. Many proponents of group rights think of them as moral rights: groups, like individuals, have moral rights, and those moral rights should shape a society's political, constitutional and legal arrangements. Indeed, if they are the moral rights of nations or peoples, they should shape international arrangements. Clearly, rights that claim a moral foundation are open to challenge in a way that legally founded rights are not, but that has done nothing to deter claims to moral rights, including claims to moral group rights. Understanding Group Rights

The Rights of Groups as Moral Entities Traditionally, group rights have been understood as the rights of groups conceived as unitary entities. Although it is common to contrast group rights with individual rights, on this view a group is itself a sort of individual. Just as the right of an individual person is a right held by that person as a single integral entity, so the right of a group can be conceived as the right of a single integral entity or 'group-individual'. On this view, attributing moral rights to a group entails ascribing moral standing to the group, since moral rights can be possessed only by beings that possess moral standing. That is not to say that we should ascribe moral standing to every gathering or aggregation of individuals that we might describe as a 'group'. Groups have to possess a significant measure ofunity and identity, and perhaps other features besides, if they are to possess moral standing as groups.

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But, if a group passes the necessary tests, we can think of it as a moral being, possessed of a moral status, analogous to that of an individual person. In other words, the group holds rights as an entity in its own right: its standing and its rights are not reducible to the standing and the rights of its individual members. The account of group r ights given by Peter French in Chapter 1 of this volume is an unambiguous example of this conception of group rights. Legal systems commonly recognize corporations as persons in law. French argues, much more unusually, that we should recognize corporations as moral persons. Indeed, he maintains that moral personhood and legal personhood are two entirely separate phenomena, so that a corporation's being a moral person is in no way dependent on its prior recognition as a legal person. Corporations, as moral persons, should be treated 'as members of the moral community, of equal standing with the traditionally acknowledged residents: biological human beings ' ; they have 'whatever privileges, rights and duties as are, in the normal course of affairs, accorded to moral persons' (p. 5). So corporations have moral rights and responsibilities in the same way as do individual human persons. French makes these strong claims only for a particular type of group: one that is organized with an internal decision structure so that it is capable of intentional agency. It is also crucial to French's view that the agency, and therefore the rights and responsibilities, exercised by a corporation are not reducible to those of the various human individuals who staff or own it. He distinguishes this sort of group from an 'aggregate collectivity ' such as a mob, which has no formally constituted structure or organization and whose rights and responsibilities are reducible without remainder to the rights and responsibilities of the individuals who make it up. While, in the essay reproduced here, French focuses only on business corporations, he indicates elsewhere that he would make the same claims for other organized groups, such as political parties, legislative assemblies, country clubs, univer sity departments, armies and charitable organisations (French, 1 984, p. 1 3). French sets the bar quite high for a group to qualify as a right-holder. He treats intentional agency as a necessary condition for moral personhood, so that only groups satisfying that condition will have the rights of moral persons. Keith Graham, in Chapter 2, sets the bar a little lower. In his view, although some groups are capable of moral agency, possession of that capacity is not a necessary condition for the possession of moral status. It is enough that the group, as a group, can be an object of moral concern. Moral patients can be, but do not have to be, moral agents. Graham points out that groups, such as families, committees, clubs and battalions, have continuing identities as collective entities that persist despite changes in their membership. There are also some things that only groups can do: for example, only an electorate can return a government and only an orchestra can play a symphony. We cannot therefore write groups out ofour account of the world . In addition, groups can be, as collective entities, victims or beneficiaries of others' conduct: for example, they can be deceived or harmed, or treated justly or unjustly. They can also flourish, and a group's flourishing qua group is not the same as the flourishing of its individual members. Graham does not claim that we should assign collectivities precisely the same moral status as individual persons, but he does argue that some groups share sufficient relevant features with individuals to justify our treating groups as independent members of the moral realm. Although Graham nowhere in his essay expressly ascribes rights to groups, the independent moral status that he gives collective

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entities, and the benefits and harms that he indicates they can undergo, provide the essential ingredients for group rights. Dwight Newman is another theorist who is sympathetic to what I have described as the 'traditional' view of group rights, although he supports it in a novel fashion. His very rich essay (Chapter 3) ranges over many aspects of group rights, but it is immediately relevant here for the way in which he makes the case for group rights through his understanding of collective interests. We might suppose that the interest of a group derives from the interests of its members, but that, argues Newman, would be to get things the wrong way round. It is the interests of a group 's members that derive from the interest of the group of which they are members. Newman distinguishes between sets and collectivities. A set has no identity that is separate from its members, so that it becomes a new set each time its membership changes. A collectivity, by contrast, remains the same collectivity despite changes in its membership. We think, for example, that a football club or trade union remains the same football club or trade union, even though new members join and old members leave. A collectivity, therefore, has an identity separate from its members. It also has interests, as a collectivity, that are not reducible to the interests of the individuals who populate it. For example, a football club has the stated aim of winning against rival clubs and therefore has an interest in achieving that aim. Promoting that interest may involve acting contrary to the interests of some individuals in the club, such as dropping poor players or firing the current management. Of course, we do relate members ' interests to the club's interest, but Newman's point is that it is the club's interest that defines the interests of the members qua members, not vice versa. We can arrive at group rights by combining that point with the interest theory of rights, according to which having a right entails having an interest that grounds a duty (Raz, 1986, p. 1 66). Collectivities will have rights whenever their interests as collectivities are of sufficient moment to ground duties for others. An important common feature of the analyses of French, Graham and Newman is that they conceive a right-holding group as having a being and an identity that is independent of its membership at any particular moment. That helps to make the case for conceiving the rights of groups as the rights of independent moral entities. We cannot reduce the rights of groups to the rights of their members if groups themselves are not reducible to their memberships. However, not everyone who assigns moral standing to groups wishes to separate groups from their members in that way. In Chapter 4 Michael McDonald locates the critical feature that makes a group a right­ holding group in the group 's subjectivity rather than in its objective characteristics or formal organization. What matters is that the group 's members 'see themselves as normatively bound to each other such that each does not act simply for herself or himself but each plays her or his part in effectuating the shared normative understanding ' (p. 76). The group may have a formal organization and decision-making rules, but it is still the shared understanding of its members, rather than institutional structures, that is crucial to its moral being and to its possessing rights. That shared understanding may correlate with, and be promoted by, shared objective features, such as a shared heritage, language, belief or social condition, but once again what matters is the intersubjective understanding that those objective features help to sustain, rather than the objective features in and of themselves . It is perhaps significant that McDonald is less concerned with formally constituted groups, such as clubs and corporations, than with ethnic,

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cultural, language and belief groups. If these sorts of group are to have a community being and community interests, such that they are ' fundamental units of value' that 'matter in their own right' (p. 95), perhaps their 'groupness' can reside only in their members' conception of themselves as members of a group. But, in that case, there is no way we can think of the group as existing separately from its members. 1 McDonald feels the pull of liberal reservations about group rights, but still believes that those reservations are trumped by the communitarian case for group rights. The Shared Rights of a Group s Members

Accepting that groups can have standing as groups is often thought essential to embracing group rights. The battle line that divides supporters from opponents of group rights is often presented as the line that divides those who are willing to give an independent moral status to groups from those who confine that status to individuals. However, that is too simple. There is a way of understanding group rights that gives groups no standing independently of their members. This is the conception of group rights that I set out in my own contribution to this collection (see Chapter 5). I distinguish between two ways of conceiving group rights: the ' corporate' and the 'collective' . I use the label 'corporate' to describe conceptions of group rights of the sort described in the previous section. They are ' corporate' because they conceive a right­ holding group as a corporate entity that has standing in its own right (even though proponents of this conception often prefer to use the adjective ' collective'). A 'collective' conception, by contrast, understands a group right as a right that is shared by the individuals who make up the group. It is so-called because it is a right held jointly by a 'collection' of individuals. How can a right that is shared by a collection of individuals be a genuine group right? The answer is best explained by reference to Joseph Raz's interest theory of rights. According to Raz, 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' (Raz, 1986, p. 1 66). So, simply stated, to have a right is to have an interest that grounds a duty for others. 2 Now suppose that we have a case in which the interest of a single individual is insufficient by itself to create a duty for others, but the combined interests of several such individuals do suffice to create that duty. In that case, the individuals will possess a right together that none of them possesses separately (cf. Raz 1 986, pp. 207--09). The interest might be, for example, that of a linguistic minority in being able to use its language in the public domain. If we take any single member of the minority, that individual's interest is unlikely to be sufficient to impose the relevant duty on the majority society, given the high costs and inconvenience of making public provision for a minority language. But, if we take For other accounts of group rights that give moral standing to groups, but that, like McDonald's, locate the essential quality for that standing in a group's intersubjective features and so do not conceive groups separately from their members, see Galenkamp ( 1 993) and May ( 1 987). 2 Raz's definition of a right implies that the interest that grounds the right can be only the interest of the right-holder, but elsewhere he indicates that the case for a right can also be made by the interest of others in the right-holder 's having that right. For example, the right of journalists not to reveal their sources is grounded not only in their own interest in that right, but also in the public's interest in their having that right. See Raz ( 1 986, pp. 245--63; 1 994, pp. 44-59; 1 995).

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the combined interests of all members of the minority, they may well suffice to ground the duty. If they do, the linguistic minority will have a right as a group that none of its members possesses singly. What I describe as a 'collective' right is, therefore, genuinely a group right since it is a right that individuals hold only as a group. However, on this conception, we do not need to conceive a group's interest as something other than the interests of its members, since it is the several, if identical and shared, interests of the members that makes the case for the group's right. In addition, we need not ascribe moral standing to the group separately from its members. The right is collectively or jointly held by the individuals who make up the group and is underwritten by their moral standing as individuals. The corporate and collective conceptions not only present fundamentally different understanding of groups as bearers of rights, but also surround group rights with different issues. Seumas Miller 's account ofgroup rights (Chapter 6) is a clear example of a collective, rather than a corporate, conception. Miller conceives group rights as the joint rights of individual persons and accordingly sees no need to interpret right-bearing groups as supra-individual entities. He understands a joint right as a right to a collective good that any particular individual holds only jointly with others. For example, the right of two people to own the house they have built together is a joint right. So is the right to political participation, if it is understood not merely as an individual's right to vote but as a right to political participation as a shared activity and a collective good. Miller reserves the term 'collective right' for a right that is jointly held by the members of a social group. He identifies a ' social group' as a group that possesses common conventions, norms and institutions, and that has shared in a common life over generations. His paradigm examples of social groups are national, cultural and ethnic groups, including indigenous peoples. He does not immediately assign collective rights of autonomy and cultural self­ preservation to these groups. A group must be viable as an independent entity before it can have those rights. It must also pass certain moral tests: for instance, it must not be a predatory group and it must promote the autonomy and well-being of its members. However, all these conditions relate only to the content of the rights that social groups might claim; in their structure, the rights of social groups remain rights held jointly by their members. In her account of group rights, Carol Gould (Chapter 7) also abjures holistic conceptions of groups, which regard them as reified entities that exist over and above their individual members. But she is equally keen to resist simple individualist accounts that conceive groups as no more than aggregations of individuals. Instead, she argues that we should see groups as 'individuals-in-relations' (see also Gould, 1 988, pp. 9 1-1 1 3 ; 200 1). That is because individuals become the people they are in and through social relations. It is also because, as group members, individuals can have common purposes and can engage in joint activities that they could not as independent individuals. We need the idea of group rights if there are to be rights to goods that only individuals-in-relations can enjoy. In some ways, Gould's thinking on group rights is similar to McDonald's. But, whereas McDonald gives moral status to groups as such, Gould does not. Indeed, she goes on to derive group rights from individual rights. It is important to recognize that we can take full account of the way in which social relationships affect those involved in them, and of the interests and aspirations that people can have only as group members, while still holding that ultimately only individual persons have moral standing. Group membership matters for what it makes possible and for the impact

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it has on people 's lives, but it matters ultimately because it matters for the persons - the individuals-in-relations - who are the members of groups. Leslie Green's argument on group rights in Chapter 8 has a similar thrust, although he makes his case in a quite different way. Green identifies misgivings about individualism as a major motivating concern behind the assertion of group rights. While he argues that many worries about individual rights - that, for example, they promote egoism and social conflict - are misplaced, he does recognize that there are collective goods, such as fellowship and cooperative activity, that individual rights cannot capture. If we wish to make provision for the collective dimensions ofpeople's lives by recognizing group rights, what should we regard as the crucial factor that makes those rights 'collective ' ? Green identifies two possible answers. One is that a right is a collective right if and because it is the right of a collective agent. By a 'collective agent ' he means roughly what I described previously as a 'corporate ' entity that has a capacity for agency, typically an organized group with a decision-procedure. According to this answer, it is the collective nature of the subject of a right that makes it a group right. The other answer looks more towards the object of the right: a right to a good is a group right if it is grounded in a collective interest in that good. So a right is a collective right if and because it is grounded in a collective interest in the object of the right. Green argues that group rights will better serve the communitarian concerns of their advocates, if we conceive them as rights grounded in collective interests, rather than as the rights of collective agents. He does not expressly address the question of how we should think of the subject of a right grounded in a collective interest but, by implication, that subject would seem to be the individuals who share in the collective interest and therefore in the right.

Group Rights and Collective Goods Green's argument signals another way ofapproaching the questions of whether and why there are group rights. Instead of focusing on the possible subjects of those rights, we might focus on their possible objects - on what they are rights to. Some goods may have a necessarily collective character. If they do, and if there are rights to those goods, it would seem that those must be group rights. This is the issue that drives the essay by Denise Reaume (Chapter 9). Are there goods which, if they are objects of rights, can be objects of group rights only? We might suppose that public goods fit the bill; these are goods that are public to a group in that they are non­ excludable and non-rival in consumption for the members of the group. Reaume points out, however, that some public goods may reasonably be considered objects of individual rights. Clean air is a standard example of a public good, yet we can reasonably hold that individuals have a right to clean air as individuals : someone who pollutes the air of a community violates the rights of each individual member of that community, rather than a group right of the community as a whole . Reaume focuses instead on what she calls 'participatory goods ' . These are goods whose enjoyment by an individual depends on their also being enjoyed by others. Examples are friendship and a team game . I can enjoy genuine friendship with others only if they enjoy it with me, and I can play a team game only if others play it too. Of course, we do not normally think that people have rights to goods such as friendship but, Reaume argues, some

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goods commonly associated with rights do have a participatory aspect, such as the goods of living in a cultured comm unity, sharing a language with others and engaging in collective expressions of belief. Because of their participatory nature, rights to such goods can only be group rights. Are there, then, group rights to participatory goods? We have already seen one obstacle to simply answering 'yes': some participatory goods, such as love and friendship, may not be suitable objects for rights of any kind. But another issue is what exactly rights to participatory goods would be rights to. Rights impose duties. So if some people have rights to participatory goods, do others have duties to provide them with those goods? This is the question that Andrei Marmor takes up in Chapter I 0. He describes participatory goods as ' common goods' , but I shall continue here to call them participatory goods. 3 For Marmor, the problem with a right to participatory goods lies in the very fact that those goods depend for their goodness on their being valued by a community of others. A right to those goods would imply that others are duty-bound to share in those values, and a duty of that type is, he says, 'morally very disturbing' (p . 204 ). It is at odds with the freedom and personal autonomy that are fundamental to a liberal society. Moreover, if a group has right to a participatory good, such as its culture, language or traditional way of l ife, that may justify its suppressing internal dissent and change, and compelling people to remain members of the group in order to maintain its good. In fact, Reaume herself rejects rights that would yield those burdensome duties. Participatory goods may often, though not always, require voluntary participation to be the goods they are. But, anyway, Reaume does not argue that rights to those goods should spawn duties of participation. Rather, she suggests that they may yield duties for 'outsiders' not to interfere with or destroy the good and perhaps duties to provide conditions in which the good can continue and flourish. For example, the right of a linguistic minority to its language as a participatory good might generate duties of that kind for the majority society. Elsewhere Reaume proposes that we should understand group rights as rights to participatory goods ( 1 994, pp. 1 23-24), but that seems a step too far. Even if only groups can have rights to participatory goods, they need not have rights only to participatory goods. She has also associated rights to participatory goods with what I previously described as the corporate conception of group rights (Reaume, 1 994, pp. 1 24-25). That, too, seems misplaced. Arguing for group rights through participatory goods implies that the right-holding group consists of all of those who participate in the good, which implies the collective conception. The good of a group conceived as a corporate entity need not be a good that is shared in by all whom the group encompasses. Indeed, as Newman shows in Chapter 3 , the good of a group so conceived can be defined independently of the good of the individuals who belong to it.4 Scepticism about Group Rights As I indicated at the outset, group rights are deeply controversial. The starkest challenge that the idea of group rights faces is that it does not m ake sense. Many people deny that it is These goods have also been labelled ' communal goods' (Waldron, 1 993, pp. 339--{;9) and ' shared goods' (Green, 1 988, pp. 207-09; Raz, 1 995, pp. 3 5-36). 4 For a challenge to Reaume's basic claim that rights to participatory goods cannot be individual rights, see Morauta (2002) .

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possible or plausible for groups to have rights and insist that rights can be possessed only by human individuals. However, scepticism about group rights comes in different forms. In Chapter 1 1 Andrew Vincent examines whether groups can be persons. His essay is particularly valuable for examining that issue in the context of a long history of thinking about groups, their nature and their status, which most contemporary authors on group rights simply ignore. Much of that past thinking on groups focused on the nature and rights of states conceived as groups, which, again, is an issue that is largely absent from contemporary writing on group rights. Vincent d istinguishes the notion that we can conceive groups as persons from the closely associated notions that we can conceive them as individuals and organic entities. It is not quite accurate to describe his reservations about ascribing moral personhood to groups as ' sceptical' , since his obj ections are more moral than ontological. What troubles him most are the implications of that ascription for the status and freedom of the individuals who are absorbed into group-persons. However, he argues that, while we have good reason to reject conceptions of groups as moral persons, we need not object to the ascription of juristic personality to groups. There is much common ground in the objections that Michael Hartney and Jan Narveson bring against group rights. Some of their objections are ontological in nature. Neither denies the social reality ofgroups nor the significance that groups can have for the lives of individuals. But they do reject the notion that groups can have the sort of being they would need if they were to be independent right-holders. Both deny that groups are social wholes that can exist independently of their members, and both resist attempts to impute to human qualities to groups. Narveson (Chapter 12) insists, for example, that 'only individuals can make decisions, can literally have values, literally engage in deliberation and reasoning ' (p. 250). In a similar fashion, others insist that sentience is a precondition for right-holding and that groups cannot qualify as right-holders because, unlike their members, they are not sentient beings (Rainbolt, 200 1 , pp . 79-80; Kymlicka, 1989, pp . 24 1 -42). Choice theorists of rights might allow that some groups can have rights, but only if they are groups capable of choice (see, for example, Sumner, 1987, pp. 209-1 1 ). However, some critics deny that groups are capable of agency of the sort needed for right-holding (Wellman, 1995, pp. 1 57-65; Wall, 2000; 2003, pp . 270-76), and some deny that groups can have interests qua groups, so that even an interest theory of rights should not recognize group rights (Wall, 2003 , p . 273). Indeed, in Chapter 1 3 Hartney argues that a group cannot have interests over and above those of its members and that all so­ called collective interests are fully intelligible as the interests of individuals. Hartney's and Narveson's objections to group rights are value-based as well as ontological. Both subscribe to what Hartney describes as 'valu e-individualism' -the view that ' only the lives of individual human beings have ultimate value'. They therefore reject 'value-collectivism' - the view that 'a collective entity can have value independently of its contribution to the well-being of individual human beings' (p. 267). That does not mean that they assign no value to groups but, rather, that groups have value only insofar as they contribute valuably to the lives of individuals. Both understand this to imply that only individuals can have moral r ights. Groups may have legal rights as fictitious persons in law, but there is no place for fictitious entities in morality (see also Graff, 1 994). Narveson augments his critique of group rights with an account of the 'radical liberal individualism' to which he subscribes. That individualism makes room for groups, but only insofar as individuals either become or remain group members voluntarily.

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Chandran Kukathas's celebrated essay on cultural rights (Chapter 1 4) expresses another kind of scepticism about groups and their rights, which might be described as sociological. Proponents of group rights tend to suppose that the groups to which they accord rights are pre-existing, natural entities: a group already exists and has interests and, when we ascribe rights to the group, we simply recognize those 'facts' in a morally appropriate fashion. In fact, Kukathas points out, groups are often themselves the creations of political institutions, so that it is the process of ascribing rights that itself carves out a segment of humanity and endows it with the status of a 'group' . A larger grouping, which encompasses that group, might equally have been a candidate for recognition. So might smaller groupings within the favoured group, since groups are rarely internally homogeneous in either composition or interest. We have reason therefore to be sceptical of the naturalness, definition and integrity that the proponents of cultural rights proj ect on to social groups (see also Offe, 1 998; Sharp, 1 999; Waldron, 2002). Kukathas's reservations about group rights are also based on the value-individualism that he shares with Hartney and Narveson. He rejects the so-called 'abstract individualism ' that ill­ informed critics wish upon liberalism. Liberals have no problem in recognizing the significance of cultures and communities, but ultimately those social phenomena matter only because they matter to individuals: 'while groups or cultures or communities may have a character or nature which is not reducible to the nature of the individuals who inhabit them, their moral claims have weight only to the extent that this bears on the lives of actual individuals, now and in the future' (p. 292). Like Narveson, Kukathas argues that we should treat cultural groups as voluntary associations. Membership of a cultural group is, of course, not usually voluntary in the first instance, but individuals should always have a right of exit so that their continued membership is voluntary. Groups have only those rights that their members give them; they have no right, independently of the wishes of their members, to the continued existence of either themselves or their culture. 5 (See also Kukathas, 2003 .) Group Rights, Individual Rights and Human Rights In considering scepticism about group rights, it is well to remember that conceptions of group rights differ. In particular, criticisms that focus on the ontological nature, moral status or intrinsic value of groups presuppose a corporate conception of group rights. They are of no consequence for a collective conception, which attributes no existence, status or value to a group independently of the individuals who make it up. However, criticism of group rights often takes another form in that it focuses on the danger rather than the possibility of group rights, although it is common to find critics, such as those considered in the previous section, expressing both sorts of reservation. Fear of group rights is mainly fear of the threat they pose to individuals and their rights. We might expect these fears to centre primarily on individuals external to the group. If we picture the right of a group coming up against the right of an external individual, it looks like an uneven contest in which the group will trounce the individual. However, worries about group rights have not been principally of that kind, perhaps because the external parties For other sceptical assessments of group rights, see Graff ( 1 994); Griffin (2003); Rainbolt (200 1 ) ; Wall (2000, 2003); Wellman ( 1 995).

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to which group rights are directed are often other groups rather than discrete individuals. Much more concern has been expressed about the implications of group rights for individuals inside the group. A group can wield its rights over its own members and may do so in a way that oppresses or disadvantages them. Kukathas, for example, observes that the real effect of conceding rights to cultural groups is often to bolster the position of the conservative elites who dominate them, who then use their power to promote their own interests, suppress internal dissent and maintain established inequalities. Worries about women are particularly prominent amongst critics of cultural group rights. Given the subordinate position of women in most traditional cultures, the consequence of assigning rights to cultural groups may be to perpetuate and reinforce their subordination. Susan Moller Okin has done much to highlight the tensions between feminism and multiculturalism and the paradox of liberal societies' showing sensitivity to 'difference' by giving cultural groups rights to flout the very freedoms and equalities that are fundamental to liberalism (Okin, 1 997, 1 998; also Cohen, Nussbaum and Howards, 1 999). 6 Whereas Narveson and Kukathas (Chapters 1 2 and 1 4) deal with the possibility ofa group's abusing its own members by insisting that each member must have a right of exit so that he or she can escape the abuse, Okin points out in Chapter 1 5 that, in reality, exit is an option unequally available to members of a group and one that women are often unable to take. Girls often receive less education than boys; they often enter into early and involuntary marriages, which they are less free than men to leave; and they are socialized into strict gender roles. As a result, by the time they reach adulthood, exit has disappeared as a genuine option. Moreover, women tend not to want leaving the group to be the only solution to their mistreatment. For Okin, that mistreatment should be dealt with not merely by rights of exit, but by groups being deprived ofrights to oppress and discriminate against their members and by states' upholding the rights of individuals against groups. In Chapter 1 6 Leighton MacDonald, while acknowledging that group rights can adversely affect individuals and their rights, takes a generally more optimistic view of their relationship. Drawing on the work of Raz, Green and Reaume, he argues that cultural groups do have collective interests that can be adequately provided for only by collective rights, and that there is often a close relation between people's interests as individuals and as group members, so that the individual and group rights yielded by those interests are complementary. Some conflicts between the two sorts of right may be inevitable but, he suggests, we have no reason to suppose that confl icts between group rights and individual rights must occur more frequently than conflicts amongst different individual rights. And, when conflicts do occur, we need not suppose that group rights either will or should outweigh individual rights. Nor need 'balancing' and compromising be our only option in dealing with conflicts; exploring ways in which the rights at stake are internally related may indicate a right outcome. Steven Wall (Chapter 1 7) aims to establish an even more positive relation between individual and groups rights: recognition of group rights is not only compatible with, but is actually required by, the liberal commitment to individual autonomy. 7 His claim, briefly For similar critiques of group rights, see Deveaux (2000); Doppelt (2002); Macdonald ( 1 989); Offe ( 1 998); Shachar ( 1 998, 1 999); and Tamir ( 1 999). 7 For similar efforts to present group rights as the servants of individual rights, see Jacobs ( 1991 ); Kymlicka ( 1 989, 1 995); and Wellman ( 1 999).

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stated, is that col lective rights are necessary for collective self-rule, and collective self-rule is necessary for the individual autonomy of a group's members. Individuals have an autonomy­ based interest in the existence of a range of options, some of which w i l l be vital for their autonomy. Amongst those vital options are joint options - options to engage in joint activities with others in one's group - and it is those options that, in tum, argue for a group's being entitled to at least a measure of self-rule. Wall makes this claim only for territorially-based ethno-cultural groups, such as the French-speaking Quebecers in Canada and the Basques in Spain. G iven the nature of h is argument, it cannot be depl oyed in defence of groups that subvert their m em bers' autonomy. Carol Gould (Chapter 7) presents an argument of a sim i lar character. She starts from the principle that individuals have an equal right to the conditions of their self-development, one of which is participation in common activity. That includes participation in common or joint activity with others in one 's cultural group. M inorities, whose cultures are at risk of marg inal ization or suppressi on by the majority society, may need group rights that secure the cultural cond itions for their members ' self-developm ent. Those will then be group rights that are grounded in the individual rights of the group's members. Because they are so grounded, they will not be group rights that can justify a group's frustrating its members' self­ development or violating any of their human rights. Arguments about the way in which group rights relate to human rights replicate debates about the way in which they relate to individual rights. Do human rights stand in a potentially antagonistic re l ation to group rights, so that it is part of their function to hold the claim s o f groups in check? Or are human rights and group rights essentially complementary? The answer will very m uch depend, of course, on the particular group right at issue. B ut, in the context of human rights, group rights raise another question: can group rights them selves be human rights? Although i nternational declarations and convent i ons setting out hum an rights present these mostly as individual rights, there are prominent examples of the ascription of hum an rights to groups. The preambles to the UN 's two International Covenants ( 1 966), for instance, describe the rights they announce as human rights, yet their first a1ticles ascribe to all ' peoples' the right of sel f- determ ination, the right freely to dispose their natural wealth and resources, and the right not to be deprived of their means of subsi stence. Since the rights of peoples (as opposed to people) are n ecessarily group rights, the implication is that some human rights take a coll ective form . The same impl ication is present in the conception of genocide as a human rights crime, since the specifi c wrong of genocide is a wrong visited upon a group. A right can be a human right on ly if it is universal to humanity, but arguably some group rights can pass that test (Jones, 1 999). In C hapter 1 8 M ichae l Freeman defends the idea of collective human rights by maintaining that we should regard as human rights those collective rights that protect the same fundamental values and interests as individual human rights. He argues therefore that group rights which provide for collective self-determination, wh ich seek to combat group inj ustices and inequalities, and which aim to protect the collective interests of vu lnerable m inorities, including cultural m i n or ities and ind igenous peoples, should al l be conceived as collective human rights. 8 for other accounts that view the idea of collective human rights favourably, sec Casals (2006); Felice ( 1 996); Kymlicka (200 1 , pp. 69-90); Malik ( 1 996): and Van Dyke ( 1 985).

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David Miller 's essay (Chapter 19) represents the other side of the argument. Many who object to the idea of collective human rights do so simply on the ground that only human individuals can hold human rights (see, for example, Donnelly, 2002; Graff, 1 994; Galenkamp, 1993 ; Nordenfelt, 1987; Sieghart, 1985), but Miller does not take exception to the very idea of collective human rights. His objections are justificatory rather than conceptual. He takes human rights to be rights grounded in features of personhood that all humans share and that provide for the basic needs and interests of persons . The problem for Miller in making collective self-determination the object of a human right is that decisions on which groups should be self-determining, how much and what sort of self-determination they should have, and how that should bear on territorial claims are all highly contingent on circumstances. Different arrangements will be right or best for different populations. We cannot therefore invest 'collective self-determination ' with the simple uni form content it would need i f it were to be meaningful as a universal human right. If we turn to cultural groups, justification of their rights normally rests upon the claims of equal citizenship rather than mere personhood. The clearest case for those r ights is that they are needed if members of the group are to enjoy genuinely equal citizenship with others in the larger society to which the group belongs. The case for cultural group rights is sometimes grounded not on that egalitarian concern, but on a group's wish that its 'difference' should be recognized and legitimated, but Miller finds that justification altogether more problematic. His objection to collective human rights is not, then, that group rights could never be human rights, but that the rights actually claimed for groups are rights grounded in their members' claims as citizens rather than as human beings.

Applications Part V, the final section of this collection, includes essays devoted to a range of major contemporary issues in which group rights figure prominently. However 'academic ' some work on group rights may seem, it is stimulated by the relevance of group r ights to real-world claims and conflicts. One of the most commonly asserted and accepted group rights - so common that it is often taken for granted - is the right of national self-determination. The adjective 'national' used in this context might describe no more than the population of a state, so that the right asserts simply that, however the boundaries of a state have been set, its population has a right to determine its own political life, free from external coercion or interference. However, 'national' can also have a more specific meaning. It might describe a population that is identifiable as a nation by virtue of its shared culture, ethnicity, language, history, faith or sense of identity. In that case, the right of national self-determination usually means the right of a nation to be an independent state or, at least, to enjoy a significant measure of political autonomy. It is in that second more specific sense that Avishai Margalit and Joseph Raz (Chapter 20) examine and defend the right of national self-determination. People often treat nations analogously to human persons : nations, like persons, enjoy a moral status that, of itself, entitles them to be self-determining. However, that is not how Margalit and Raz approach national self-determination. They identify a number of characteristics that distinguish nations as 'encompassing groups' - groups that possess pervasive cultures that shape the tastes and opportunities of their members and anchor their self-identities. Those characteristics explain why the well-being of a nation's members is promoted by their forming a self-ruling group,

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which in turn explains why - consistently with Raz's interest theory of rights in general and collective rights in particular - nations have the moral right to be self-determining. In Chapter 2 1 Will Kymlicka examines the closely related case of cultural groups. No-one has done more than Kymlicka to stimulate contemporary interest in group rights, even though he himself has qualified enthusiasm for the idea. He is well known for arguing that cultural minorities, which include indigenous minorities and national minorities within multinational states, should enjoy special rights designed to provide for the special character and circumstances of their cultures (see Kymlicka, 1989, 1 995, 200 1 ). He describes these rights as 'group-differentiated' or 'group-specific'. As we have seen, these group-differentiated rights may or may not be group rights, even though commentators now often conflate the two sorts ofright. Kymlicka has dismissed debates over whether a particular group-differentiated right is also a group right as ' sterile because the question of whether the right is (or is not) collective is morally unimportant' ( 1 995, p. 45). However, his own concerns about group rights (that is, ' collective rights ' as opposed to individual rights) belie that claim. In the essay reproduced here, Kymlicka uses the term 'group right' to mean 'group­ differentiated' right: it is a right to something more than, or other than, the common rights of citizenship. However, all the group-differentiated rights he considers in the essay are also 'group rights' in the sense of the term used in this volume (rights held by groups as groups rather than by their members severally), and the principal issue he examines is the danger that those rights allegedly pose for individual rights. The concerns of his essay relate closely therefore to those considered in Part IV. Using the case of indigenous minorities, he distinguishes between two sorts of group right: the rights of a group against its own members, which enable the group to impose internal restrictions, and the rights of the group against the larger society within which it exists, which provide it with external protections. He also distinguishes between 'good' group rights, which complement human rights and deal with injustices that individual rights cannot address, and ' bad' group rights, which illiberal groups use to restrict the basic freedoms of their members. Generally he regards rights that provide a group with external protections as 'good' ; they protect its distinct existence and limit its vulnerability to externally made decisions. Rights that enable a group to impose internal restrictions are less straightforward. All collective self-rule imposes internal restrictions on people's liberty. These restrictions are 'bad' only when they are oppressive - for example, when they deprive people of religious freedom or discriminate against women. However, Kymlicka argues against coercive interference in the group's affairs by the outside world, except in the most extreme cases, and proposes alternative ways of influencing groups that show them greater respect and are likely to be more effective in the long term. Group rights are very frequently claimed by and for indigenous peoples, partly as a consequence of their vulnerability and the history of mistreatment many of them have suffered. But they are made the subjects of group rights in particular because of the collective nature of the claims they present to the outside world, such as claims to self-government, to respect for their traditional institutions and ways of life, to land or territory, and to special representation in legislatures. But, beyond being the rights of groups, what sort of rights are the rights of indigenous peoples? In Chapter 22 Duncan Ivison wrestles with that question. Legally, the rights special to an indigenous people are often an amalgam of common-law rights and treaty-based rights. Ivison highlights the rigidity, insecurity and danger involved in relying only on inherited law as the foundation for aboriginal rights, both for an indigenous

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people as a whole and for its more vulnerable and less powerful members. He proposes that we should ground indigenous rights in the principles associated with human and political rights, especially the values of freedom, equality and well-being. However, that does not mean that individual rights must replace group rights, or that group rights cannot be both corporate and collective in form, or that indigenous minorities cannot have rights special to themselves. Nor does it automatically license external interference whenever minority practices conflict with liberal norms. The history, circumstances and cultures of indigenous peoples are various and complex, and their rights must reflect that. 9 Minority language speakers are another minority by whom and for whom group rights are often claimed. Linguistic majorities do not normally need to appeal to rights since their language is already dominant and secure. But a minority language may be in danger of erosion and eventual extinction and may also be a source of social disadvantage for its speakers. Not everyone is persuaded that language rights need be group rights (see, for example, Lagerspetz, 1 998), and there can be cases in which adverse treatment of a group's language can be met by individual claims of right. For example, if a government prohibits the use of a minority language, as governments have sometimes done, that prohibition can be deemed a violation of the right of each individual speaker of the language. But it is much more difficult to treat general measures designed to protect and sustain minority language use as matters of individual right. Nathan Brett (Chapter 23) examines these issues in relation to the French-speaking minority in Canada and prohibition of the use of English in public signage in Quebec. He argues that, if we follow the conditions that Raz lays down for a collective right, the case can be made for French-speakers in Canada having collective rights. The continuance of their language is a public good for the French-speaking minority, and their interest in that public good is sufficiently significant to generate duties for others to help secure its continuance; the interest of any single French speaker could not ground those duties. Thus, we can reasonably ascribe collective language rights to the Canadian Francophone community. Nevertheless, we then have to specify more precisely what those rights are. In particular, it remains an open question whether those collective rights can justify the sort of restriction imposed on English-language use in Quebec. 1 0 In the final essay of the collection, John Edwards examines a policy that, although much discussed, has received relatively little attention in the literature on group rights, despite its being very much a 'group' issue. 1 1 This is the policy variously described as affirmative action, positive discrimination or preferential treatment. Affirmative action raises issues of group rights most conspicuously when it is conceived as a policy that aims to compensate a group for past mistreatment or disadvantage. It can be directed at groups identified by race, such as African-Americans, or caste, such as the Dalits in India, or gender, such as women. Edwards identifies several issues raised by collective rights of compensation, such as how we define the group that is to be compensated, how we determined the degree of compensation it should receive, how compensation should be distributed amongst the group ' s members, and how far back we can and should go in seeking to right historical wrongs. He For other discussions of the rights of indigenous peoples, see Anaya (2004); Buchanan ( 1 993); Holder and Comtassel (2002); Ivison et al. (2000); and Thornberry (2002). 10 For the issues surrounding language rights, see Schneiderman ( 1 99 1 ) and Kymlicka and Patten (2003). 11 For an exception, see Ingram (2000).

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also examines how collective rights to compensation have been implemented in the United States. Affirmative action does not have to be conceived as a form of group compensation. It might be justified as promoting diversity or as securing a more genuine equality of opportunity amongst individuals. Edwards suggest that liberal states, such as the United States, have been happy to emphasize these other objectives as a way of alleviating the tension between their individualistic ethic and a policy that uses groups as its units ofjustice. He also describes how, in recent years, the U S Supreme Court has reasserted the virtue of liberal individualism and become increasingly parsimonious in its recognition of collective rights to compensation. Conclusion Although group rights were widely recognized in previous centuries, for a period after the Second World War they were regarded less favourably (Van Dyke, 1 974, 1 977), having come to be associated with conflict, repression and the worst excesses of nationalism. The language of rights became, and has remained, predominantly a language that assigns rights to individuals. However, the collective dimensions of people's lives have now forced group rights back on to the political agenda and, in spite of all the controversy that surrounds them, it is not easy to make full moral sense of our world without according them recognition. References Anaya, S. James (2004), Indigenous Peoples in International Law (2nd edn), Oxford: Oxford University Press. Buchanan, Allen ( 1 993), 'The Role of Collective Rights in the Theory of Indigenous People's Rights' , Transnational Law and Contemporary Problems, 3( 1 ), pp. 89- 1 08. Casals, Neus Torbisco (2006), Group Rights as Human Rights: A Liberal Approach to Multiculturalism, Dordrecht: Kluwer. Cohen, Joshua, Nussbaum, Martha and Howards, Matthew (eds) ( 1 999), Is Multiculturalism Bad for Women?, Princeton, NJ: Princeton University Press. Deveaux, Monique (2000), ' Conflicting Equalities? Cultural Group Rights and Sex Equality' , Political Studies, 48(3), pp. 522-3 9. Donnelly, Jack (2002), Universal Rights in Theory and Practice (2nd edn), Ithaca, NY: Cornell University Press. Doppelt, Gerald (2002), 'Illiberal Cultures and Group Rights: A Critique of Multiculturalism in Kymlicka, Taylor, and Nussbaum' , Journal of Contemporary Legal Studies, 12, pp. 66 1-92. Felice, William F. ( 1 996), 'The Case for Collective Human Rights: The Reality of Group Suffering', Ethics and International Affairs, 1 0, pp. 47-6 1 . French, Peter A. ( 1 984), Collective and Corporate Responsibility, New York: Columbia University Press. Galenkamp, Marlies ( 1 993), Individualism and Collectivism: The Concept of Collective Rights, Rotterdam : Rotterdamse Filosofische Studies. Gould, Carol C. ( 1 988), Rethinking Democracy, Cambridge : Cambridge University Press. Graff, James A. ( 1 994), 'Human Rights, Peoples, and the Right to Self-Determination', in Judith Baker (ed.), Group Rights, Toronto: Toronto University Press, pp. 1 86---2 1 4 . Green, Leslie ( 1 988), The Authority ofthe State, Oxford : Clarendon Press.

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Griffin, James (2003), ' Group Rights', in Lukas H. Meyer, Stanley L. Paulson and Thomas W. Pogge (eds), Rights, Culture and the Law: Themes from the Legal and Political Philosophy ofJoseph Raz, Oxford: Oxford University Press, pp. 1 6 1 -82. Holder, C.L. and Comtassel, J.J. (2002), 'Indigenous Peoples and Multicultural Citizenship: Bridging Collective and Individual Rights ' , Human Rights Quarterly, 24( 1 ), pp. 1 26-5 1 . Ingram, David (2000), Group Rights: Reconciling Equality and Difference, Lawrence: University of Kansas Press. Ivison, Duncan, Patton, Paul and Sanders, Will (eds) (2000), Political Theory and the Rights of Indigenous Peoples, Cambridge: Cambridge University Press. Jacobs, Lesley A. ( 1 99 1 ), 'Bridging the Gap between Individual and Collective Rights with the Idea of Integrity ', Canadian Journal ofLaw and Jurisprudence, 4(2), pp. 3 75-86. Jones, Peter ( 1 999), 'Human Rights, Group Rights, and Peoples' Rights' , Human Rights Quarterly, 21( 1 ), pp. 80-1 07. Kukathas, Chandran (2003), The Liberal Archipelago: A Theory of Diversity and Freedom, Oxford: Oxford University Press. Kymlicka, Will ( 1 989), Liberalism, Community and Culture, Oxford: Clarendon Press. Kymlicka, Will ( 1 995), Multicultural Citizenship, Oxford: Clarendon Press. Kymlicka, Will (200 I ), Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship, Oxford: Oxford University Press. Kymlicka, Will and Patten, Alan (eds) (2003), Language Rights and Political Theory, Oxford: Oxford University Press. Lagerspetz, Erik ( 1 998), 'On Language Rights' , Ethical Theory and Moral Practice, 1 (2), pp. 1 8 1 -99. Macdonald, Ian ( 1 989), 'Group Rights ', Philosophical Papers, 18(2), pp. 1 1 7-36. Malik, Maleiha ( 1 996), 'Communal Goods as Human Rights' , in Conor Gearty and Adam Tomkins (eds), Understanding Human Rights, London: Mansell, pp. 1 3 8-69. May, Larry ( 1 987), The Morality of Groups: Collective Responsibility, Group-Based Harm, and Corporate Rights, Notre Dame, IN: University of Notre Dame Press. Morauta, James (2002), 'Rights and Participatory Goods' , Oxford Journal of legal Studies, 22( 1 ), pp. 9 1-1 1 3 . Nordenfelt, Johan ( 1 987), 'Human Rights - What They Are, and What They Are Not', Nordic Journal of International Law, 56( 1), pp. 1-8. Offe, Claus ( 1 998), "'Homogeneity" and Constitutional Democracy : Coping with Identity Conflicts through Group Rights', Journal ofPolitical Philosophy, 6(2), pp. 1 1 3-4 1 . Okin, Susan Moller ( 1 997), 'ls Multiculturalism Bad for Women?', Boston Review, 22, pp. 25-28. Okin, Susan Moller ( 1 998), 'Feminism and Multiculturalism: Some Tensions' , Ethics, 108, pp. 66 184. Rainbolt, George (200 I ), ' What are Group Rights? ' , in Christine Sistare, Larry May and Leslie Francis (eds), Groups and Group Rights, Lawrence: University of Kansas Press, pp. 7 1 -8 1 . Raz, Joseph ( 1 986), The Morality ofFreedom, Oxford : Clarendon Press. Raz, Joseph ( 1 994), Ethics in the Public Domain, Oxford : Clarendon Press. Raz, Joseph ( 1 995), 'Rights and Politics', Indiana Law Journal, 71 ( 1 ), pp. 27-44. Reaume, Denise ( 1 994), ' The Group Right to Linguistic Security: Whose Right, What Duties? ' , in Judith Baker (ed.), Group Rights, Toronto: Toronto University Press, pp. 1 1 8-4 1 . Schneiderman, David (ed.) ( 1 99 1 ), Language and the State: The Law and Politics of Identity, Cowansville, Quebec: Les Editions Yvon Blais. Shachar, Ayelet ( 1 998), 'Group Identity and Women's Rights in Family Law: The Perils of Multicultural Accommodation', Journal of Political Philosophy, 6(3), pp. 285-305. Shachar, Ayelet ( 1 999), 'The Paradox of Multicultural Vulnerability', in Christian Joppke and Steven Lukes (eds), Multicultural Questions, Oxford: Oxford University Press, pp. 87-1 1 .

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Sharp, Alan ( 1 999), ' What i f Yalue and Rights Lie Foundationally in Groups? The Maori Case ' , Critical Review of International, Social and Political Philosophy, 2(2), pp. 1 -28. Sieghart, Paul ( 1 98 5 ), The Lawful Rights ofMankind, Oxford : Oxford University Press. Sumner, L. W. ( 1 987), The Moral Foundation of Rights, Oxford : Clarendon Press. Tami r, Yae l ( 1 999), ' Against Collective Rights', in Christian Joppke and Steven Lukes (eds), Multicultural Questions, Oxford : Oxford University Press, pp. 1 5 8-80. Thornberry, Patrick (2002), Indigenous Pe oples and Human Rights, Manchester: Manchester University Press. Van Dyke, Vernon ( 1 974), ' H uman Rights and the Rights of Groups', A merican Journal of Political Science, 18, pp. 725--4 1 . Yan Dyke, Vernon ( 1 977), 'The Indiv idual. the State, and Ethnic Commun ities i n Po litical Theory' , World Politics, 29(3), p p . 34 1 ---69. Yan Dyke, Vernon ( I 985), Human Rights, Ethnicity and Discrimination, Westport, CT: Greenwood Press. Wal dron, J eremy ( 1 99 3 ) , Liberal Rights, Cambridge : Cambridge U niversity Press. Waldron, J eremy ( 2002), ' Taking Group Rights Carefu l ly ' , in G. H uscroft and P. Ri shworth (eds), Litigating Rights: Perspectives from Domestic and International Law. Oxford: Hart, pp. 203-20. Wal l, Edmund (2000), ' The Problem of Group Agency ' , Philosophical Forum, 3 1(2), pp. 1 87-97. Wall, Edmund (2003), ' Problems with the Group Rights Thesis', American Philosophical Quarterly, 40(4), pp. 269-85 . Wel lman, Carl ( 1 995), Real Rights, Oxford : Oxford University Press. Wellman, Christopher Heath ( 1 999), ' Liberal ism, Communitarianism, and Group Rights', /,aw and Philosophy, 1 8 ( 1 ), pp. 1 3-40.

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Part I

Understanding Group Rights

DOI: 10.4324/9781315253770-1

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The

Rights

of Groups

as

Moral Entities

DOI: 10.4324/9781315253770-2

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THE CORPORATION AS A MORAL PERSON [1] PETER A. FRENCH I

torically correct in citing the law as a primary origin of the term “person.” But he is incorrect in maintaining that its legal usage somehow entails its metaphysical sense, agency; and whether or not either sense, but especially the metaphysical, is interdependent on the moral sense, accountability, is surely controversial. Regarding the relationship between metaphysical and moral persons there are two distinct schools of thought. According to one,

of his New York Times columns of not too was aroused by a Gulf Oil Corporation advertisement that “pointed the

INlong ago Tom Wicker’s ire one

finger of blame” for the energy crisis at all elements our society (and supposedly away from the oil company). Wicker attacked Gulf Oil as the major, if not the sole, perpetrator of that crisis and virtually every other social ill, with the possible exception of of

venereal disease. It does not matter whether Wicker was serious or sarcastic in making his charges (I suspect he was in deadly earnest). I am interested in the sense ascriptions of moral responsibility make when their subjects are corporations. I hope to provide the foundation of a theory that allows treatment of corporations as members of the moral community, of equal standing with the traditionally acknowledged residents: biological human beings, and

Wicker-type responsibility ascriptions unexceptionable instances of a perfectly proper sort without having to paraphrase them. In short, corporations can be full-fledged moral persons and have whatever privileges, rights and duties as are, hence treats

as

in the normal

course

persons.

of affairs, accorded

to

moral

II

It is important to distinguish three quite different notions of what constitutes personhood that are entangled in our tradition: the metaphysical, moral and legal concepts. The entanglement is clearly evident in Locke’s account of personal identity. He writes that the term “person” is “a forensic term, appropriating actions and theirmerit; and so belongs only to intelligent agents, capable of law, and happi1 ness, and misery.” He goes on to say that by consciousness and memory persons are capable of extending themselves into the past and thereby become “concerned and accountable,” 2 Locke is his1 2

John Ibid.

Locke. An

to be a metaphysical person is to be a moral one; to understand what it is to be accountable one must understand what it is to be an intelligent or a rational agent and vice-versa; while according to the other, being an agent is a necessary but not sufficient condition of being a moral person. Locke holds the interdependence view with which I agree, but he roots both moral and metaphysical persons in the juristic person, which is, I think, wrongheaded. The preponderance of current thinking tends to some version of the necessary pre-condition view, but it does have the virtue of treating the legal

person as something apart. It is of note that many contemporary moral philosophers and economists both take a pre-condition view of the relationship between the metaphysical and moral person and also adopt a particular view of the legal personhood of corporations that effectually excludes corporations per se from the class of moral persons. Such philosophers and economists champion the least defensible of a number of possible interpretations of the juristic personhood of corporations, but their doing so allows them to systematically sidestep the question of whether corporations can meet the conditions of

metaphysical personhood. 3

III

John Rawls is, to some extent, guilty of fortifying what I hope to show is an indefensible interpretation of the legal concept and of thereby encouraging an

Essay Concerning Human Understanding (1960), Bk. II, Ch. XXVII.

particularly flagrant example see: Michael Jensen and William Meckling, “Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure,” Journal of Financial Economics, vol. 3 (1976), pp. 305-360. On p. 311 they write, “The 3

For

a

private corporation

or

firm is

simply

one

form of

legal

fiction which

serves

as

a

nexus

for

contracting relationships

..."

DOI: 10.4324/9781315253770-3

6

Group Rights

2 08

A M E R I C A N P H I L O S O P H I C A L QU A R T E R L Y

anthropocentric bias that has led to the general belief that corporations just cannot be moral per­ sons. As is well known, Rawls defends his two prin­ ciples of j ustice by the use of a thought experiment that incorporates the essential characteristics ofwhat he takes to be a pre-moral, though metaphysical population and then "derives" the moral guidelines for social institutions that they would accept. The persons (or parties) in the "original position" are described by Rawls as being mutually self-interested, rational, as having similar wants, needs, interests and capacities and as being, for all intents and pur­ poses, equal in power (so that no one of them can dominate the others) . Their choice of the principles of j ustice is, as Dennett has pointed out, 4 a rather dramatic rendering of one version of the compelling (though I think unnecessarily complex) philo­ sophical thesis that only out of metaphysical persons can moral ones evolve. But Rawls is remarkably ambiguous (and admit­ tedly so) regarding who or what may qualify as a metaphysical person. · He admits into the category, in one sentence, not only biological human beings but "nations, provinces, business firms, churches, teams, and so on," 5 then, perhaps because he does not want to tackle the demonstration of the ration­ ality, etc., of those institutions and organizations, or because he is a captive of the traditional prejudice in favor of biological persons, in the next sentence he withdraws entry. "There is, perhaps, a certain logical priority to the case of human individuals : it may be possible to analyze the actions of so-called artificial persons as logical constructions of the actions of human persons . . . "• "Perhaps" is, of course, a rather large hedge behind which to hide ; but it is, I suppose, of some significance that in A Tluory of Justiu when he is listing the nature of the parties in the "original position" he adds "c. associations (states, churches, or other corporate bodies) . " 7 He does not, unhappily, discuss this entry on his list anywhere else in the book. Rawls has hold, I think, of an important intuition : that some associations of human beings should be treated as metaphysical persons capable on his account of becoming moral persons, in and of themselves. He has, however, shrunk from the task of exploring the implications of that intuition and has instead

retreated to the comfortable bulwarks of the anthro­ pocentric bias .

IV Many philosophers, including, I think, Rawls, have rather uncritically relied upon what they incorrectly perceive to be the most defensible juristic treatment of collectivities such as corpora­ tions as a paradigm for the treatment of corporations in their moral theories. The concept of corporate legal personhood under any of its popular inter­ pretations is, I want to argue, virtually useless for moral purposes. Following many writers on jurisprudence, a juristic person may be defined as any entity that is a subject of a right. There are good etymological grounds for such an inclusive neutral definition. The Latin "persona" originally referred to dramatis personae, and in Roman law the term was adopted to refer to anything that could act on either side of a legal dispute. [It was not until Boethius' definition of a person : "Persona est naturae rationabilis individua substantia (a person is the individual subsistence of a rational nature)" that metaphysical traits were ascribed to persons.] In effect, in Roman legal tradi­ tion persons are creations, artifacts, of the law itself, i.e., of the legislature that enacts the law, and are not considered to have, or only have incidentally, existence of any kind outside of the legal sphere. The law, on the Roman interpretation, is systema­ tically ignorant of the biological status ofits su bj ects. The Roman notion applied to corporations is popularly known as the Fiction Theory. Hallis characterizes that theory as maintaining that "the personality of a corporate body is a pure fiction and owes its existence to a creative act of the state."• Rawls' view of corporate persons could not, how­ ever, be motivated by adherence to the Fiction Theory for two reasons. The theory does not demand a dichotomy between real and artificial persons. All juristic persons, on the theory, are creations of the law. The theory does not view the law as recognizing or verifying some pre-legally existing persons ; it argues that the law creates its own subjects. Secondly, the theory, in its pure form at least, does not regard any juristic persons as composites. All things which

' Daniel D�nn�tt. "Conditions of P.ersonhood" in TM Identities of Ptrson.r ed. by A. 0. Rorty (Berkeley, 1 976) , pp. f 75-1 96. • John Rawls, "Justice as Reciprocity," in Jahn StMllTt Mill, Utilitarianism, ed. by Samuel Gorovitz (Indianapolis, 197 1 ), pp. 244-245. • Ibid. ' John Rawls, A Th,o"J •fJustice (Cambridge, 1 97 1 ) , p. 1 46. • Frederick Hallis, Corpcrat, Pmanality ( Oxford, 1 930) , p. xlii.

Group Rights

7

T H E C O R P O R A T I O N AS A M O R A L P E R S O N

are legislatively created as subj ects o f rights are non­ reducible or, if you will, primitive individual legal persons. ( It is of some note that the Fiction Theory is enshrined in English law in regard to corporate bodies by no less an authority than Sir Edward Coke who wrote that corporations "rest only in intend­ ment and consideration of the law." 9 ) The Fiction Theory's major rival in American jurisprudence and the view that does seem to in­ form Rawls' account is what I shall call "the Legal Aggregate Theory of the Corporation. " It holds that the names of corporate bodies are only umbrel­ las that cover (but do not shield) certain biological persons. The Aggregate Theory treats biological status as having legal priority and corporate exist­ ence as a contrivance for purposes of summary reference. (Generally, it may be worth mention, Aggregate Theorists tend to ignore employees and identify corporations with directors, executives and stockholders. The model on which they stake their claim is no doubt that of the primitive partnership. ) I have shown elsewhere'• that to treat a corporation as an aggregate for any purposes is to fail to recog­ nize the key logical differences between corporations and mobs. The Aggregate Theory, then, despite the fact that it has been quite popular in legislatures, courtrooms, and on streetcorners simply ignores key logical, socio-economic and historical facts of corporate existence. [It might prove of some value in clarifying the dispute between Fiction and Aggregate theorists to mention a rather famous case in the English law. (The case is cited by Hallis.) It is that of Continental Tyre and Rubber Co., Ltd. vs Daimler Co. Ltd. Very sketchily, the Continental Tyre company was incorporated in England and carried on its business there. Its business was the selling of tires made in Germany, and all of its directors were German subjects in residence in Ger­ many, and · all but one of its shares were held by German subjects. The case arose during the First World War, and it turned on the issue of whether the company was an English subject by virtue of its being incorporated under the English law and independent of its directors and stockholders, and could hence bring suit in an English court against an English subject while a state of war existed. The

majority opinion ofThe Court ofAppeals (5- 1 ) was that the corporation was an entity created by statute and hence was "a different person altogether from the subscribers to the memorandum or the share­ holders on the register." 11 Rallis aptly summarizes the judgment of the court when he writes that "The Continental Tyre and Rubber Co., Ltd., was an English company with a personality at law distinct from the personalities of its members and could therefore sue in the English Courts as a British Sub­ ject. "12 The House of Lords, however, supporting the Aggregate Theory and no doubt motivated by the demands of the War, overturned the Court of Appeals. Lord Buckley wrote "The artificial legal entity has no independent power of motion. It is moved by the corporator. . . . He is German in fact although British in form. " 13 This view has seen many incarnations since on both sides ofthe Atlantic. I take Rawls' burying of his intuition in the logical priority of human beings as a recent echoing of the words of Lord Parker who in the Continental Tyre case wrote for the majority in the House of Lords : " . . . the character iri which the property is held and the character in which the capacity to act is enjoyed and acts are done are not in pari materia. The latter character is a quality of the company itself, and con­ ditions its capacities and its acts and is attributable only to human beings . . . "]1' In Germanic legal tradition resides the third major rival interpretation of corporate juristic per­ sonhood. Due primarily to the advocacy of Otto von Gierke, the so-called Reality Theory recognizes corporations to be pre-l egal existing sociological persons. Underlying the theory is the view that law cannot create its subj ects, it only determines which societal facts are in conformity with its requirements. At most, law endorses the pre-legal existence of persons for its own purposes. Gierke regards the corporation as an offspring of certain social actions having then a de facto personality, which the law only declares to be a juridical fact.I& The Reality Theory's primary virtue is that it does not ignore the non-legal roots of the corporation while it, as does the Fiction Theory, acknowledges the non­ identity of the corporation and the aggregate of its directors, stockholders, executives and employees.

• 10 Co. R,p. 253, see Hallis, p. xiii. 10 "Ty pes of Collectivities and Blame," TIIL Pmonalist, vol. 56 ( 1 975), p p . 1 60- 1 69, and in th.e first chapter of my Foundations ef Responsibility (forthcomin g ) . 11 "' Continental Tyre and Rubber Co. , Ltd. vs . Daimler Co . , Ltd." ( 1 9 1 5) , K.B. , p . 893. 12 Hallis 1 · p . xlix. " " Continental Tyre and Rubber Co. , Ltd. vs. Daimler Co. , Ltd." ( 1 9 1 5 ) , K.B., p . 9 1 8. " ( 1 9 1 6 ) , 2 A.C., p. 340. " See in particular Otto von Gierke, Di, Gmomruckoftstl!Lori, (Berlin, 1 887 ) .

Corporal