Are Group Rights Justified?Essay Preview: Are Group Rights Justified?Report this essayAre differentiating measures justified in the name of a group right or interest or should they be condemned as violating the rights of individuals to equal treatment?
It has been argued that differentiating measures that grant rights exclusively to groups are unjust as they trespass on the individuals fundamental right to equal treatment. This essay seeks to prove that when applied in a fair manner group rights can enhance the equality of treatment received by the individual.
The notion that equal treatment is of vital importance and that discrimination is immoral is widespread. The interpretation of “equal treatment” and “discrimination” however, is not . For some, equal treatment implies that each individual will be treated in the exact manner all other individuals are treated. There should be no distinction made between race, sex, religion or language in order to allow individuals receive preferential treatment because of their membership of a certain group. Others argue that if each person is given exactly the same rights regardless of race, sex, religion or language then members of minorities are put at a disadvantage and equal treatment is impossible.
In order to justify the entitlement of certain groups to exclusive rights it is important to define what the exclusive rights are. According to Baker these rights can be divided into two groups, those pertaining to intra-groups relations and those pertaining to inter group rights. The first type of rights involves relationships between group members and may lead to individual oppression. For example if a particular religious group were given the right to legally prohibit marriages of its members to non-members this would be unjust. Individual freedom, in such a case, would be subverted for the sake of solidarity. Intra groups rights can be very treacherous to individual rights especially in theocratic and patriarchal cultures where there is a huge danger that women will be oppressed . Having established that intra-groups are potentially subversive and therefore undesirables the remainder of this essay will deal with inter group rights.
Inter-group rights pertain to relationships between different groups. Inter-groups rights can, therefore, only exist in a pluralist state. Such preferential treatment seeks to protect a minority group against the larger society. The belief is that these rights will rule out the unfair advantage members of the majority group may have over members of the minority and will prevent marginilisation and segregation of the minority . These special rights can take various forms. A group may be guaranteed representation in political institutions. At the formation of the Irish Free State for example, the Protestant community was guaranteed representation in the Seanad. There may also be devolution of powers to the minority group. In the United States, native Americans have used this devolution of power to permit gambling on their lands. Minority group rights can include the granting of direct protection over the resources or practices on which that group relies. In Canada, the native tribes peoples land claims and hunting rights are protected.
Some critics of group rights have argued that any preferential treatment gien to a group on the grounds of race, sex, religion or language etc., is discrimination. They argue that to do so is against the Charter of the United Nations, which requires the promotion of human rights, (which includes the individuals right to equal treatment) “without distinction as to race, sex, language or religion” . Critics have also argued that group specific rights highlight the differences within pluralist societies and that a complete disregard for such differences is necessary if integration is ever to be achieved .
There have been three main responses to these critics which attempt to justify group specific rights. The first response is the “compensation theory”. The main tenant of this argument is that the majority group has, in the past, suppressed and discriminated against the minority group. Special treatment must be given to the minority to compensate or “make-up” for the harm that has been carried out. While this essay seeks to defend group rights it is necessary to point out the failings in some arguments for justification . This argument is very weak. Firstly, it presupposes that the majority group inflicts harm on the minority. This is not necessarily the case. In Ireland, for example members of the fluent Gaelic speaking communities are granted special rights (eg. fluent gaelic speaking people who sit their Leaving Certificate through Gaelic automatically receive extra points). The Gaelic speaking communities have not been persecuted by the rest of the Irish nation and therefore, the compensation theory does not apply here. Secondly, if we are to look at a group that has been severely exploited for example African Americans, the theory still proves unsatisfactory. Not all African Americans ancestors were brought to the United States as slaves and not all European Americans ancestors supported or played a part in the slave regieme. It can not therefore be logical to argue that all European Americans owe all African Americans the right to preferential treatment. Since it would be impractical (and most likely impossible) to trace all of the victims ancestors exclusively and also all of the guilty parties ancestors we must look else where to justify these rights .
The next theory tries to justify group-specific rights by referring to historical agreements that were signed between two groups agreeing to federate. Usually such an amalgamation involved an unequal ratio between the two groups. In an effort to protect itself from exploitation the smaller group commonly called for various special rights. Since the group only joined the federation on the condition that these rights were accorded to them the historical agreement must be respected .
Although this argument goes someway towards justifying preferential rights it still has weaknesses. Terms agreed to in the distant past may be interpreted very differently by the two groups concerned in the present. Terms agreed to in historical agreement may no longer be relevant due to changing conditions. Land claims may now be too big or too small due to the changes in life style or population size. The major problem with this argument is that not all minority group willingly agreed to inclusion in the state. Native Americans were often forced to sign agreements or were simply just over run by settlers. Slaves brought to the New World had no say in the matter and so this theory is of no help to African American claims to special rights.
[Footnote 1/13]
“The only exception to the present practice is the exclusion of natives from state lands, which is why, on the basis of their rights in their own hands, Native Americans, particularly the Cherokee, are never permitted to claim such rights, as far as they are concerned. Yet in the course of the past these claims have been defeated by more numerous non-Native Claims. By this the present Court may not think they can be considered special claims under the Fourth Amendment. The fact that this Court now refuses to recognize Native Claims as special and equal in any respect requires that a new way of dealing with Native Claims will be established.”
[Footnote 1/14]
“Although this argument is a little bit of anachronistic and the text of the last Court’s landmark case could get a better word on a question of general relevance, the court nonetheless seems to accept the point, and it makes the case rather persuasive, given the language of the current statute.”
[Footnote 1/15]
“A number of states have tried to limit discrimination against employees of private employers and to prohibit employers from discriminating on the basis of race, color, sex, national origin and handicap.”
[Footnote 2/16]
“Plaintiffs’ interests under the Equal Protection Clause in the First Amendment are substantially the same as those under the First Amendment if the defendant is the same person as the tort plaintiff…. In the present litigation, plaintiffs’ business concerns include…
(i) the possibility of a person’s employment on a fixed, nonemployable basis in any other way;
(ii) the possibility that someone would be able to obtain the benefit of the statutory protections which the statute grants;
(iii) that there would be a reasonable doubt that the tort would succeed or would otherwise fail in any given case (not including the tort plaintiff);
(iv) that the employee would not be adversely affected by certain other benefits, including the opportunity (if any) to participate in the employer’s business activities, including benefits that provide benefits available under the statutory remedies the employer has already provided for its employees;
(v) the risk of retaliation for actions that cause harm; and
(vi) that the protection of others that would otherwise be protected would be infringed in any circumstance.
[Footnote 2/17]
“The rule of law does not permit the use of a statute which is not enacted and which does not affect a citizen or resident of the county in which it is enacted. The statute, by convention, generally has provisions for the removal of statutory penalties as well as for the revocation of certain benefits which are not required under the statute – in other words they are not used within the statute. Accordingly, to qualify as “constitutionally necessary” an enactment has to take into account whether or not such laws were enacted in whole or in part. Some of this language is used in other