Individual rights
Encyclopedia
Group rights are rights
held by a group rather than by its members separately, or rights held only by individuals within the specified group; in contrast, individual rights are rights held by individual people regardless of their group membership or lack thereof. Group rights have historically been used both to infringe upon and to facilitate individual rights, and the concept remains controversial. Group rights are not straightforwardly human rights
because they are group-differentiated rather than universal to all people just by virtue of being human.
discourse, individual rights are often associated with political and economic freedom
, whereas group rights are associated with social control
. This is because in the West the establishment of individual rights is associated with equality before the law and protection from the state. Examples of this are the Magna Carta
, in which the English King accepted that his will could be bound by the law and certain rights of the King's subjects were explicitly protected.
By contrast, much of the recent political discourse on individual rights in the People's Republic of China
, particularly with respect to due process rights and rule of law
, has focused on how protection of individual rights actually makes social control by the government more effective. For example, it has been argued that the people are less likely to violate the law if they believe that the legal system is likely to punish them if they actually violated the law and not punish them if they did not violate the law. By contrast, if the legal system is arbitrary then an individual has no incentive to actually follow the law.
, legalised racism
and white nationalism
. In this context group rights award rights to a privileged group. For example, in South Africa
under the former apartheid regime, which classified inhabitants and visitors into racial groups (black, white, coloured and Indian). Rights were awarded on a group basis, creating first and second class citizens
.
In the United States
individual rights for all by virtue of being human were only established after the Civil War
, in 1868, with the Fourteenth Amendment
to the Constitution. The Fourteenth Amendment was intended to secure rights for former slaves and amongst others includes the Due Process
and Equal Protection clauses.
for all citizens, 'equality' is often an euphemistic reference to material equality (money & resources). This is where the group is regarded as being in a situation such that it needs special protective rights if its members are to enjoy living conditions on terms equal with the majority of the population.
Examples of such groups may include indigenous peoples
, ethnic minorities
, women, children and the disabled. This discourse may takes place in the context of negative and positive rights
in that some commentators and policy makers conceptualise equality as not only a negative right, in the sense of ensuring freedom from discrimination
, but also a positive right, in that the realisation of equality requires redistributive action
by others or the state. In this respect group rights may aim to ensure equal opportunity
and/or attempt to actively redress inequality.
An example this is the Black Economic Empowerment
(BEE) program in post-Apartheid South Africa
. The South African government seeks to redress the inequalities of Apartheid by giving previously disadvantaged groups (black Africans, Coloureds and Indians who are SA citizens) economic opportunities previously not available to them. It includes measures such as Employment Equity, skills development, reverse racism, ownership, management, socio-economic
development and preferential procurement. The South African Bill of Rights, contained in the South African Constitution contains strong provisions on equality, or the right to equality, in Section 9. While stating that "discrimination... is unfair unless it is established that the discrimination is fair," section 9 also contains the provision that, "to promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken."
India
has an extensive system of affirmative action quotas or reservations intended to redress historical inequalities of opportunity, especially the legacy of caste system
.
Government programs of reverse discrimination
or positive discrimination exist in a number of countries: Non-quota race preferences are in place in the United States
for collegiate admission to government-run educational institutions.
Group rights in such a context may aim to achieve equality of opportunity and/or equality of outcome
. Such affirmative action
can be controversial as they are in conflict with the absolute application of the right to equality, or because some members of the group that is intended to benefit from such programs criticizes or opposes them.
s, corporation
s, trade associations, chambers of commerce, political parties
. Such organizations are accorded rights which are particular to their specifically-stated functions and their capacities to speak on behalf of their members, i.e., the capacity of the corporation to speak to the government on behalf of all individual customers or employees or the capacity of the trade union to negotiate for benefits with employers on behalf of all workers in a company
.
, the Constitution
outlines individual rights within the Bill of Rights
. In Canada
, the Canadian Charter of Rights and Freedoms
serves the same function. One of the key differences between the two documents is that some rights in the Canadian Charter can be overridden by governments if they explicitly do so according to Section 33 of the Charter . In practice, the Quebec government used the provision frequently in the early 1980s as a protest, and since then to maintain a ban on non-French public signs for five years. The government of Saskatchewan has used it for back-to-work legislation, and the government of Alberta sought to use it to define marriage as strictly heterosexual. In contrast, in the United States, no such override exists even in theory; even a constitutional amendment
could not remove these rights entirely, as they are considered inalienable under the natural rights principles the Constitution is founded upon.
and classical liberals, the role of the government is solely to identify, protect, and enforce the natural rights of the individual while attempting to assure just remedies for transgressions. Liberal governments that respect individual rights often provide for systemic controls that protect individual rights such as a system of due process
in criminal justice
. Collectivist states are generally considered to be oppressive
by such classical liberals and libertarians precisely because they do not respect individual rights. Interceding within that spectrum for the actual availing of collective governance to be allotted systematization and their undivided agency, but relegated for the regulation of such freedom toward constructed entities is the federative process. A faculty of federalism
that lends to relative de-standardization of governance under its auspices, unlike libertarian or socialistic manners of state. Federated structures allow for diversity of power distribution between the alternating group and individual interest schemata where neither liberal nor collective type governing alone can codify in variation.
Ayn Rand
, developer of the philosophy of Objectivism
asserted that a group, as such, has no rights. A man can neither acquire new rights by joining a group nor lose the rights which he does possess. Man can be in a group without want or the group minority, without rights. The principle of individual rights is the only moral base of all groups or associations. She maintained that since only an individual man can possess rights, the expression "individual rights" is a redundancy, but the expression "collective rights" is a contradiction in terms. Individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority; the political function of rights is precisely to protect minorities from oppression by majorities (and the smallest minority on earth is the individual). This could be argued to contravene the idea of corporate personhood
.
Rights
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...
held by a group rather than by its members separately, or rights held only by individuals within the specified group; in contrast, individual rights are rights held by individual people regardless of their group membership or lack thereof. Group rights have historically been used both to infringe upon and to facilitate individual rights, and the concept remains controversial. Group rights are not straightforwardly human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
because they are group-differentiated rather than universal to all people just by virtue of being human.
Overview
In WesternWestern culture
Western culture, sometimes equated with Western civilization or European civilization, refers to cultures of European origin and is used very broadly to refer to a heritage of social norms, ethical values, traditional customs, religious beliefs, political systems, and specific artifacts and...
discourse, individual rights are often associated with political and economic freedom
Economic freedom
Economic freedom is a term used in economic and policy debates. As with freedom generally, there are various definitions, but no universally accepted concept of economic freedom...
, whereas group rights are associated with social control
Social control
Social control refers generally to societal and political mechanisms or processes that regulate individual and group behavior, leading to conformity and compliance to the rules of a given society, state, or social group. Many mechanisms of social control are cross-cultural, if only in the control...
. This is because in the West the establishment of individual rights is associated with equality before the law and protection from the state. Examples of this are the Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
, in which the English King accepted that his will could be bound by the law and certain rights of the King's subjects were explicitly protected.
By contrast, much of the recent political discourse on individual rights in the People's Republic of China
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
, particularly with respect to due process rights and rule of law
Rule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
, has focused on how protection of individual rights actually makes social control by the government more effective. For example, it has been argued that the people are less likely to violate the law if they believe that the legal system is likely to punish them if they actually violated the law and not punish them if they did not violate the law. By contrast, if the legal system is arbitrary then an individual has no incentive to actually follow the law.
Racism
Group rights may have a negative connotation in the context of colonialismColonialism
Colonialism is the establishment, maintenance, acquisition and expansion of colonies in one territory by people from another territory. It is a process whereby the metropole claims sovereignty over the colony and the social structure, government, and economics of the colony are changed by...
, legalised racism
State racism
State racism is a concept used by French philosopher Michel Foucault to designate the reappropriation of the historical and political discourse of "race struggle", in the late seventeenth century....
and white nationalism
White nationalism
White nationalism is a political ideology which advocates a racial definition of national identity for white people. White separatism and white supremacism are subgroups within white nationalism. The former seek a separate white nation state, while the latter add ideas from social Darwinism and...
. In this context group rights award rights to a privileged group. For example, in South Africa
South Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
under the former apartheid regime, which classified inhabitants and visitors into racial groups (black, white, coloured and Indian). Rights were awarded on a group basis, creating first and second class citizens
Second-class citizen
Second-class citizen is an informal term used to describe a person who is systematically discriminated against within a state or other political jurisdiction, despite their nominal status as a citizen or legal resident there...
.
In the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
individual rights for all by virtue of being human were only established after the Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
, in 1868, with the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
to the Constitution. The Fourteenth Amendment was intended to secure rights for former slaves and amongst others includes the Due Process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
and Equal Protection clauses.
Affirmative action
In the modern context, 'group rights' are argued for by some as an instrument to actively facilitate the realisation of equality. In a society where there is already equality before the lawEquality before the law
Equality before the law or equality under the law or legal egalitarianism is the principle under which each individual is subject to the same laws....
for all citizens, 'equality' is often an euphemistic reference to material equality (money & resources). This is where the group is regarded as being in a situation such that it needs special protective rights if its members are to enjoy living conditions on terms equal with the majority of the population.
Examples of such groups may include indigenous peoples
Indigenous peoples
Indigenous peoples are ethnic groups that are defined as indigenous according to one of the various definitions of the term, there is no universally accepted definition but most of which carry connotations of being the "original inhabitants" of a territory....
, ethnic minorities
Minority group
A minority is a sociological group within a demographic. The demographic could be based on many factors from ethnicity, gender, wealth, power, etc. The term extends to numerous situations, and civilizations within history, despite the misnomer of minorities associated with a numerical statistic...
, women, children and the disabled. This discourse may takes place in the context of negative and positive rights
Negative and positive rights
Philosophers and political scientists make a distinction between negative and positive rights . According to this view, positive rights permit or oblige action, whereas negative rights permit or oblige inaction. These permissions or obligations may be of either a legal or moral character...
in that some commentators and policy makers conceptualise equality as not only a negative right, in the sense of ensuring freedom from discrimination
Freedom from discrimination
The right to freedom from discrimination is an internationally recognised human right and enshrines the principle of egalitarianism. The right to freedom from discrimination is recognised in the Universal Declaration of Human Rights and enshrined in international human rights law through its...
, but also a positive right, in that the realisation of equality requires redistributive action
Redistribution (economics)
Redistribution of wealth is the transfer of income, wealth or property from some individuals to others caused by a social mechanism such as taxation, monetary policies, welfare, nationalization, charity, divorce or tort law. Most often it refers to progressive redistribution, from the rich to the...
by others or the state. In this respect group rights may aim to ensure equal opportunity
Equal opportunity
Equal opportunity, or equality of opportunity, is a controversial political concept; and an important informal decision-making standard without a precise definition involving fair choices within the public sphere...
and/or attempt to actively redress inequality.
An example this is the Black Economic Empowerment
Black Economic Empowerment
Black Economic Empowerment is a programme launched by the South African government to redress the inequalities of Apartheid by giving previously disadvantaged groups economic opportunities previously not available to them...
(BEE) program in post-Apartheid South Africa
South Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
. The South African government seeks to redress the inequalities of Apartheid by giving previously disadvantaged groups (black Africans, Coloureds and Indians who are SA citizens) economic opportunities previously not available to them. It includes measures such as Employment Equity, skills development, reverse racism, ownership, management, socio-economic
Socioeconomics
Socioeconomics or socio-economics or social economics is an umbrella term with different usages. 'Social economics' may refer broadly to the "use of economics in the study of society." More narrowly, contemporary practice considers behavioral interactions of individuals and groups through social...
development and preferential procurement. The South African Bill of Rights, contained in the South African Constitution contains strong provisions on equality, or the right to equality, in Section 9. While stating that "discrimination... is unfair unless it is established that the discrimination is fair," section 9 also contains the provision that, "to promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken."
India
India
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
has an extensive system of affirmative action quotas or reservations intended to redress historical inequalities of opportunity, especially the legacy of caste system
Caste system in India
The Indian caste system is a system of social stratification and social restriction in India in which communities are defined by thousands of endogamous hereditary groups called Jātis....
.
Government programs of reverse discrimination
Reverse discrimination
Reverse discrimination is a controversial term referring to discrimination against members of a dominant or majority group, including the city or state, or in favor of members of a minority or historically disadvantaged group such as African Americans being slaves. Groups may be defined in terms of...
or positive discrimination exist in a number of countries: Non-quota race preferences are in place in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
for collegiate admission to government-run educational institutions.
Group rights in such a context may aim to achieve equality of opportunity and/or equality of outcome
Equality of outcome
Equality of outcome, equality of condition, or equality of results is a controversial political concept. Although it is not always clearly defined, it is usually taken to describe a state in which people have approximately the same material wealth or, more generally, in which the general conditions...
. Such affirmative action
Affirmative action
Affirmative action refers to policies that take factors including "race, color, religion, gender, sexual orientation or national origin" into consideration in order to benefit an underrepresented group, usually as a means to counter the effects of a history of discrimination.-Origins:The term...
can be controversial as they are in conflict with the absolute application of the right to equality, or because some members of the group that is intended to benefit from such programs criticizes or opposes them.
Organizational group rights
Besides the rights of groups based upon the immutable characteristics of their individual members, other group rights cater toward organizational persons, including nation-states, trade unionTrade union
A trade union, trades union or labor union is an organization of workers that have banded together to achieve common goals such as better working conditions. The trade union, through its leadership, bargains with the employer on behalf of union members and negotiates labour contracts with...
s, corporation
Corporation
A corporation is created under the laws of a state as a separate legal entity that has privileges and liabilities that are distinct from those of its members. There are many different forms of corporations, most of which are used to conduct business. Early corporations were established by charter...
s, trade associations, chambers of commerce, political parties
Political Parties
Political Parties: A Sociological Study of the Oligarchical Tendencies of Modern Democracy is a book by sociologist Robert Michels, published in 1911 , and first introducing the concept of iron law of oligarchy...
. Such organizations are accorded rights which are particular to their specifically-stated functions and their capacities to speak on behalf of their members, i.e., the capacity of the corporation to speak to the government on behalf of all individual customers or employees or the capacity of the trade union to negotiate for benefits with employers on behalf of all workers in a company
Collective bargaining
Collective bargaining is a process of negotiations between employers and the representatives of a unit of employees aimed at reaching agreements that regulate working conditions...
.
Constitutions
In the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, the Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
outlines individual rights within the Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
. In Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
serves the same function. One of the key differences between the two documents is that some rights in the Canadian Charter can be overridden by governments if they explicitly do so according to Section 33 of the Charter . In practice, the Quebec government used the provision frequently in the early 1980s as a protest, and since then to maintain a ban on non-French public signs for five years. The government of Saskatchewan has used it for back-to-work legislation, and the government of Alberta sought to use it to define marriage as strictly heterosexual. In contrast, in the United States, no such override exists even in theory; even a constitutional amendment
Constitutional amendment
A constitutional amendment is a formal change to the text of the written constitution of a nation or state.Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation...
could not remove these rights entirely, as they are considered inalienable under the natural rights principles the Constitution is founded upon.
Philosophies
In the minarchist political views of libertariansLibertarianism
Libertarianism, in the strictest sense, is the political philosophy that holds individual liberty as the basic moral principle of society. In the broadest sense, it is any political philosophy which approximates this view...
and classical liberals, the role of the government is solely to identify, protect, and enforce the natural rights of the individual while attempting to assure just remedies for transgressions. Liberal governments that respect individual rights often provide for systemic controls that protect individual rights such as a system of due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
in criminal justice
Criminal justice
Criminal Justice is the system of practices and institutions of governments directed at upholding social control, deterring and mitigating crime, or sanctioning those who violate laws with criminal penalties and rehabilitation efforts...
. Collectivist states are generally considered to be oppressive
Oppression
Oppression is the exercise of authority or power in a burdensome, cruel, or unjust manner. It can also be defined as an act or instance of oppressing, the state of being oppressed, and the feeling of being heavily burdened, mentally or physically, by troubles, adverse conditions, and...
by such classical liberals and libertarians precisely because they do not respect individual rights. Interceding within that spectrum for the actual availing of collective governance to be allotted systematization and their undivided agency, but relegated for the regulation of such freedom toward constructed entities is the federative process. A faculty of federalism
Federalism
Federalism is a political concept in which a group of members are bound together by covenant with a governing representative head. The term "federalism" is also used to describe a system of the government in which sovereignty is constitutionally divided between a central governing authority and...
that lends to relative de-standardization of governance under its auspices, unlike libertarian or socialistic manners of state. Federated structures allow for diversity of power distribution between the alternating group and individual interest schemata where neither liberal nor collective type governing alone can codify in variation.
Ayn Rand
Ayn Rand
Ayn Rand was a Russian-American novelist, philosopher, playwright, and screenwriter. She is known for her two best-selling novels The Fountainhead and Atlas Shrugged and for developing a philosophical system she called Objectivism....
, developer of the philosophy of Objectivism
Objectivism (Ayn Rand)
Objectivism is a philosophy created by the Russian-American philosopher and novelist Ayn Rand . Objectivism holds that reality exists independent of consciousness, that human beings have direct contact with reality through sense perception, that one can attain objective knowledge from perception...
asserted that a group, as such, has no rights. A man can neither acquire new rights by joining a group nor lose the rights which he does possess. Man can be in a group without want or the group minority, without rights. The principle of individual rights is the only moral base of all groups or associations. She maintained that since only an individual man can possess rights, the expression "individual rights" is a redundancy, but the expression "collective rights" is a contradiction in terms. Individual rights are not subject to a public vote; a majority has no right to vote away the rights of a minority; the political function of rights is precisely to protect minorities from oppression by majorities (and the smallest minority on earth is the individual). This could be argued to contravene the idea of corporate personhood
Corporate personhood
Corporate personhood is the status conferred upon corporations under the law, which allows corporations to have rights and responsibilities similar to those of a natural person. There is a question about which subset of rights that are afforded to natural persons should also be afforded to...
.
See also
- ConstitutionalismConstitutionalismConstitutionalism has a variety of meanings. Most generally, it is "a complex of ideas, attitudes, and patterns of behavior elaborating the principle that the authority of government derives from and is limited by a body of fundamental law"....
- Constitutional economicsConstitutional economicsConstitutional economics is a research program in economics and constitutionalism that has been described as extending beyond the definition of 'the economic analysis of constitutional law' in explaining the choice "of alternative sets of legal-institutional-constitutional rules that constrain the...
- Rule according to higher lawRule according to higher lawThe rule according to a higher law means that no written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice...
- Special rightsSpecial rightsSpecial rights is a term originally used by libertarians to refer to laws granting rights to one or more groups which are not extended to other groups...
- Disability rights movementDisability rights movementThe disability rights movement is the movement to secure equal opportunities and equal rights for people with disabilities. The specific goals and demands of the movement are: accessibility and safety in transportation, architecture, and the physical environment, equal opportunities in independent...
- Identity politicsIdentity politicsIdentity politics are political arguments that focus upon the self interest and perspectives of self-identified social interest groups and ways in which people's politics may be shaped by aspects of their identity through race, class, religion, sexual orientation or traditional dominance...
- Institutionalized discriminationInstitutionalized discriminationInstitutionalized discrimination refers to the unfair, indirect treatment of an individual embedded in the operating procedures, policies, laws, or objectives of large organizations such as the governments and corporations, financial institutions , public institutions , and other larger...
- Minority rightsMinority rightsThe term Minority Rights embodies two separate concepts: first, normal individual rights as applied to members of racial, ethnic, class, religious, linguistic or sexual minorities, and second, collective rights accorded to minority groups...
- Gay rights
- Indigenous rightsIndigenous rightsIndigenous rights are those rights that exist in recognition of the specific condition of the indigenous peoples. This includes not only the most basic human rights of physical survival and integrity, but also the preservation of their land, language, religion and other elements of cultural...
- Racial segregationRacial segregationRacial segregation is the separation of humans into racial groups in daily life. It may apply to activities such as eating in a restaurant, drinking from a water fountain, using a public toilet, attending school, going to the movies, or in the rental or purchase of a home...
- Public Order
- Corporativism - incorporates, via state compact, jurisdictions acceded both public & private characteristics