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Michael McDonald 6. Should Communities Have Rights? Reflections on Liberal Individualism The central question in this chapter is whether communities should have rights. This is a question that I will consider in a certain ideological or normative context, namely, that of liberalism. There are other contexts in which the question could be asked for, in nonliberal ideological settings; there have sometimes been clear positive answers to the question of whether minority communities should have rights. For example, the Ottoman Empire's millet system provided a system of group rights.1 Various other autocratic states such as Czarist Russia have also provided at least some de facto, if not de jure, protection for various minority groups. One might even argue that various nineteenth- and twentieth-century European colonial regimes protected minority ethnic rights to some extent.2 On paper and increasingly in reality, Marxist governments in the Soviet Union and Yugoslavia make provision for various sorts of group rights. Indeed, in both the origins and the consequences of the World Wars I and II, group rights played an extensive role.3 The Canadian context, however, is essentially a liberal democratic one. So, for us, questions of collective rights for French or English minorities, native peoples, religious groups, and even those included under the "multicultural" label arc posed in a liberal context. Is the liberal position one that is inherently hostile, sympathetic , or indifferent to group rights? This question can be addressed only by focusing on liberal attitudes to specific types of rights for various kinds of groups. Canadians, for example, would think of rights like those pertaining to language, education, political participation, equality, and ownership for groups identified by language, culture, race or ethnicity, belief, and, perhaps, gender. It is important at the outset to be clear that I am concerned in this chapter with liberalism as a normative theory; in other words, I am not especially concerned with the beliefs and actions of particular liberals J34 Michael McDonald except in a broadly evidential way. I presume that liberals, like Marxists or conservatives, can hold beliefs and perform actions contrary to the deeper ideology they profess. They may do this cither because they misunderstand the practical implications of their own deeper commitments or because under the stress of the moment they retreat from those convictions. The nearly unanimous approval of the imposition of the Canadian War Measures Act in 1970 is probably attributable to a combination of misunderstanding and backsliding. This means that my chapter is essentially an exploration of theory rather than practice, although I do believe that it has important implications for political and legal practices. In such an exploration , it is crucial to get the starting points right. Here, the potential of this chapter to illuminate depends on my conceptualization of collective rights and liberalism.It is to these starting points that I now turn. Once I have presented, in fairly stark terms, what I take to be the salientfeatures of collective rights and liberalism, I will move on to explore the positions liberals can take on collective rights. Collective Rights In the view I take of collective or group rights, I draw a distinction between a group's possession of a right and its members' possession of that right. For example, think of a club having the right to the repayment of a loan in contrast with each of the members of the club individually and severally having that right. It is clear that the existenceof similarly situated rights-holders does not automatically make a group which can hold, exercise , and benefit from collective rights. I reject then as a candidate for collective rights what I have described as a class action concept of collective rights.4 In the class action concept, the group as a rights-holder serves as a convenient device for advancing the multiple discrete and severablcinterests of similarly situated individuals.Thus, all consumers who have been disadvantaged by Bell Canada's exceeding the legal limits set on phone rates might be regarded by the courts as a single litigant, simply because it would be too expensive and inconvenient to have each Bell customer take legal action on his or her own. My comment here is that class action rights are too thin a model for collective rights. A major aim of group rights is to protect interests that are not thus severablcinto individualinterests, for the rights in question benefit the group itself by providing collective benefits .Moreover, group rights paradigmatically involve the collective...

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