About Me

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Australian philosopher, literary critic, legal scholar, and professional writer. Based in Newcastle, NSW. My latest books are THE TYRANNY OF OPINION: CONFORMITY AND THE FUTURE OF LIBERALISM (2019); AT THE DAWN OF A GREAT TRANSITION: THE QUESTION OF RADICAL ENHANCEMENT (2021); and HOW WE BECAME POST-LIBERAL: THE RISE AND FALL OF TOLERATION (2024).

Sunday, February 28, 2010

Leach on group rights

There is more to be said about this, but for the moment have a look at the piece by Joshua F. Leach on group rights over at Butterflies and Wheels.

(Hint: I think it's rather good.)

Edit: I was going to say some more, but we seem to have some good discussion going even on the basis of this minimalist post. So let's just discuss it in the comments.


Jeffrey Shallit said...

Generally speaking, I agree that most "group rights" are really individual rights in disguise.

But I can think of one possible exception: aboriginal rights. For example, in Canada, section 35 of the Constitution Act protects the historical right of native Canadians to fish, hunt, and log on their on historical lands.

Obviously this is an attempt to address (1) the fact that aboriginal groups are a sort of "nation-within-a-nation" even if that nation doesn't have all the trappings of what we normally think of a sovereign state and (2) the historical fact that aborigines had their possessions and rights systematically taken away.

But these rights, as currently enshrined, aren't individual rights -- at least as normally understood -- because they only apply to people based on their ancestry. That sounds more like group rights to me.

So, is the approach that Canada took completely off the mark? How would you have handled it instead?

Emily said...

Yes, fantastic essay, Leach crystallised many of my intuitions and thoughts about this.

But I do have one bone to pick. I think the statement "African nations are now thankfully free of colonialism" is wrong, because African nations themselves are a creation of colonialism, and a tragic one at that. Much fighting and civil wars that go on in African nations are at least partly because of the way the Europeans arbitrarily carved Africa up, pushing different tribes together. There are also self-perpetuating issues of economic exploitation of Africa by its ex-colonisers that cannot be ignored.

So while the colonialist himself may be absent from Africa, colonialism is not.

Bill Garthright said...

That's a superb article. Thanks for posting the link.

And the previous comments here are intelligent and perceptive, as usual.

Russell Blackford said...

Jeffrey, I might have handled it in the same way. I don't see these usufructuary rights held by indigenous people as in the same category as the kind of group rights that I object to. From a legal point of view, they are rights, held on the basis of tribal affiliation, that already existed at the time of invasion and conquest by European "settlers". Such rights continue at common law (and probably under customary international law, but I'm not sure about that) unless explicitly extinguished. And then there is the question as to whether it would be good public policy to extinguish these particular rights (as opposed to clarifying and regulating them) in the context of a culture being massively damaged by invasion and conquest from militarily superior enemies.

I can see merit in a sympathetic approach to that question. Perhaps we don't want rights like these to continue into the indefinite future - at some stage, people may no longer define themselves in terms of their ancestral background ... and I'd think that was a positive development. But we are managing the aftermath of a successful (in many ways tragic) invasion here, and people of good will are likely to be sympathetic to the culture that's been invaded and crushed. For this generation, at least, and maybe for quite a few to come, maintaining these sorts of usufructuary rights seems justified.

At least, that's my take on it.