fn63* This paper has benefited from detailed written comments and/or discussions with a number of people, for which I am very grateful. Among them are: Jos Elkink, Maria Paola Ferretti, Anca Gheaus, Mihaela Georgieva, Dean Machin, Hillel Steiner, Nicholas Vrousalis, Camil Ungureanu and two anonymous reviewers for this journal. Previous versions of the paper have been presented at a number of conferences and seminars such as the Theories of Territory Workshop, London, February 2009, the Political Studies Annual Conference, Manchester, April 2009, the SPIRe Visiting Speakers Seminar, UCD, Dublin, November 2008 and the Human Rights and Political Theory – Conference in Honour of Attracta Ingram, Dublin, April 2010. I want to sincerely thank the members of those audiences for very constructive comments and criticism, in particular John Baker, Graham Finlay, Cara Nine and Philip Pettit, and to apologise to anyone I may have left out.
fn11 For examples of this kind of theory, see James Griffin, On Human Rights, (Oxford, Oxford University Press, 2007), Alan Gewirth, Human Rights: Essays on Justifications and Applications, (Chicago, Chicago University Press, 1982).
fn22 Griffin, op. cit., p. 32.
fn33 I explain further down that this notion can be interpreted in two different ways. See pp. 14-15.
fn44 The best overview of the debate between the two theories of rights can be found in M.H. Kramer, H. Steiner & N.E. Simmonds, A Debate over Rights, (Oxford, Clarendon, Press, 1998).
fn55 For a full description of these powers, see H. Steiner, ‘Working Rights’ in A Debate over Rights, p. 240.
fn66 See Steiner, ‘Working rights’, pp. 289 and An Essay on Rights (Oxford, UK & Cambridge, USA, Blackwell, 1994), p. 70. Apart from being counter-intuitive, I find Steiner’s solution unconvincing since it relies on the observation that (some) state officials have the power to grant pardons and immunities from prosecution. But to my mind this is not a power to waive a duty but rather to excuse its breach.
fn77 Two of the main contemporary proponents of the Choice theory, Steiner and Sumner, refer only in passing to the possibility of group rights and while they do not dismiss this possibility outright they both question the possibility of group agency. See W. Sumner, The Moral Foundation of Rights (Oxford, Clarendon Press, 1987), p. 211 and Steiner, ‘Working rights’, pp. 288-289.
fn88 An agent is ‘the person (or other being) who is the subject where there is action’ in Ted Hondrich (ed.) – The Oxford Companion to Philosophy, 2nd ed. (Oxford, Oxford University Press, 2005), p. 18.
fn99 Although of course not all agents that have a capacity for autonomy are in fact autonomous agents, i.e. exercise their capacity. Whenever I refer to autonomous agency in this paper, I have in mind an opportunity, rather than an exercise, concept.
fn1010 C. Wellman, Real Rights (New York, Oxford University Press, 1995), p. 108. This argument proceeds too quickly in my view. It is not clear why only a possible duty bearer can have a liberty. Duty bearers should indeed be able to exercise liberties since a duty presupposes the existence of a (half) liberty and this liberty has to be exercised in order to comply with the duty but it is not equally clear why the absence of a duty cannot pertain to a non-agent since one can possess a Hohfeldian liberty without exercising it.
fn1111 Wellman, op. cit., p. 109.
fn1212 I will argue later that a capacity for choice, which is different from a capacity for action, is also required for the possession of rights.
fn1313 Wellman, op. cit., p. 112.
fn1414 Ibid., p. 113.
fn1515 Ibid., p. 112.
fn1616 The idea that the same conditions are required for both probably rests on an equivocation between two senses of responsibility: a forward looking notion, equivalent to duty and a backward looking notion, equivalent to accountability. Here I use responsibility to mean the latter.
fn1717 It is true that we might sometimes ‘punish’ children for wrongdoings but I take it that a morally appropriate action undertaken in response to their failure to comply with a duty has the developmental purpose that I outline below rather than expressing an attitude of blame. Needless to say, holding very young children morally responsible for their behaviour and inflicting genuine punishment on them is morally indefensible.
fn1818 It may be the case that imposing certain types of duty does require full-blown moral agency. I am thinking here of duties of charity or virtue, which are to be performed voluntarily and whose worth comes precisely from engaging an agent’s capacity for autonomous choice. In any event, even if this is true it does not affect those duties the performance of which is not a matter of voluntary choice, that is, perfect duties of justice.
fn1919 This suggestion is made by Philip Pettit and I would like to thank him for pointing this out to me. See his ‘Responsibility incorporated’, Ethics, 117 (2007), pp. 176-177 and A Theory of Freedom: From the Psychology to the Politics of Agency, (Oxford, Oxford University Press, 2001), chapter 1.
fn2020 Pettit accepts that some groups have the potential for full-blown agency but I do not want to go that far.
fn2121 For a discussion of outcome responsibility, see T. Honoré, Responsibility and Fault (Oxford & Portland, Oregon, Hart Publishing, 2002) and for a more general exposition of different types of responsibility, see P. Cane, Responsibility in Law and Morality (Oxford & Portland, Oregon, Hart Publishing, 2003). I take it that outcome responsibility is the moral equivalent or ground for strict liability.
fn2222 I say more about this in section three, p. 27.
fn2323 For different views on shared or joint intention, see M. Bratman, ‘Shared intention’ in his Faces of Intention: Selected Essays on Intention and Agency (Cambridge, Cambridge University Press, 1999), M. Gilbert – On Social Facts (Princeton, Princeton University Press, 1989) and ‘The structure of the social atom: joint commitment as the foundation of human behaviour’ in F.F. Schmidt (ed.), Socializing Metaphysics – The Nature of Social Reality (Lanham, MD, Rowman & Littlefield Publishers, 2003), L. May, The Morality of Groups (Notre Dame, Indiana, University of Notre Dame Press, 1987) and Sharing Responsibility (Chicago & London, University of Chicago Press, 1992) and R. Tuomela – ‘Actions by collectives’, Philosophical Perspectives, 3 (1989), The Importance of Us (Stanford, Ca., Stanford University Press, 1995) and ‘We-intentions revisited’, Philosophical Studies, 125 (2005).
fn2424 Although I do not find that all of them are equally convincing. Many of these theorists focus on intentions of individuals that may be directed toward a collective goal or that are informed by collective attitudes. For instance, Bratman’s, Gilbert’s and Tuomela’s accounts of ‘shared intention’, ‘shared commitment’ and ‘we-mode intention’ respectively are best seen as accounts of what I would call ‘shared’ or ‘joint’ intention rather than collective intention proper. By ‘shared’ intentions I mean individual intentions that happen to coincide across several individuals; thus, individuals can be seen to act together or perhaps just simultaneously because they have the same goal. By ‘joint’ intention I mean intention that individuals may form in light of each others’ intentions thus enabling them to act cooperatively or jointly. Both these types of intention are ultimately reducible to individuals’ intentions, in my view.
fn2525 P. French, Collective and Corporate Responsibility (New York, Columbia University Press, 1984), p. 32.
fn2626 See Jones, ‘Group Rights’, The Stanford Encyclopedia of Philosophy (Winter 2008 Edition), Edward N. Zalta (ed.), URL = http://plato.stanford.edu/archives/win2008/entries/rights-group/, p. 15.
fn2727 I want to thank an anonymous reviewer for this journal for pressing me to clarify this notion and Nicholas Vrousalis for helpful discussions and suggestions on this issue although I do not mean to attribute him any of the views espoused in this paper.
fn2828 Pettit argues, for instance, that ‘a social integrate is an intentional subject that is distinct from its members – that exists over and beyond its members’ and claims that such groups ‘deserve ontological recognition as intentional and personal subjects’. In P. Pettit, ‘Groups with minds of their own’ in Socializing Metaphysics, p. 184 and 175 respectively. At the same time, he claims that he is not thereby postulating any ‘ontological mystery’ or an ontologically emergent realm. Thus, he defends a weak form of the ontological status thesis.
fn2929 For an instructive history of this interpretation, whose roots are to be found in the ‘emergentist’ tradition of the nineteenth century, see C. List & P. Pettit, Groups Agents, forthcoming, pp. 74-79. This interpretation is contrasted there with the view, held by Pettit himself, that group agency supervenes on individual properties and does not constitute an ontologically emergent realm.
fn3030 This parallels Vincent’s distinction between groups as persons, individuals or organic entities. See A. Vincent, ‘Can groups be persons?’, Review of Metaphysics, 42 (1989). He argues that seeing groups as persons does not entail any of the other two views. I found his distinctions very useful but I think he probably overstates the separateness of these claims, in that some of them may imply others; however, he does not elaborate on the possible implications.
fn3131 See also J. Narveson, ‘Collective rights?’, Canadian Journal of Law and Jurisprudence, vol. 4, July 1991, p. 335 and E. Wall, ‘The Problem of Group Agency’, The Philosophical Forum, vol. XXXI, Summer 2000, p 195.
fn3232 The argument is mostly contained in French, op. cit., ch. 3, ‘The Corporation as a Moral Person’.
fn3434 Wellman, op. cit., p. 160.
fn3535 Cf. Schmitt, op. cit., p. 15. Schmitt defines conceptual supra-individualism as the view that ‘talk of groups and joint actions cannot be analyzed in terms of individuals, their non-social properties, and admissible composites of them’.
fn3636 Pettit, however, makes a valid argument in support of this conclusion. But his argument includes, unlike French’s, the required premises about the rationality and consistency of group reasoning. Thus, for Pettit, only those groups that ‘collectivise reason’ are full-blown moral agents. See again his ‘Groups with minds of their own’.
fn3737 Wellman, op. cit., p 161.
fn3838 This is to say, I remain agnostic on whether one can be a full-blown agent without ‘individual substance’. Arguments such as Pettit’s are persuasive but it is unclear to me that they establish genuine full-blown agency, which may require conscious mental processes that a group may be incapable of having.
fn3939 Wellman, op. cit., p. 161.
fn4040 Ibid., p. 160.
fn4141 For the sake of the argument, I will assume here that a mind requires individual substance.
fn4242 This argument does not depend on any particular view of intention and is again meant to be compatible with any definition.
fn4343 G. Weyl, ‘Whose rights? – A Critique of Individual Agency as the Basis of Rights’, Politics, Philosophy and Economics, 8 (2009), especially p. 145. I want to thank Hillel Steiner for this reference.
fn4444 I do not fully endorse Weyl’s conclusions. It may well be the case that individuals lack mental unity but this need not undermine liberal commitments since individuals have the capacity to be rational, consistent agents. For this reason, it can be legitimate to hold them morally responsible for their choices.
fn4545 See D. Copp, ‘Collective actions and secondary actions’, American Philosophical Quarterly, 16 (1979) and J. Feinberg, ‘Collective responsibility’, The Journal of Philosophy, 65 (1979).
fn4646 For a statement of the ‘constitution relation’, see Copp, supra note 41, pp. 182-183. These circumstances include ‘all facts about the constitutional rules or laws, laws and by-laws of organized collectives’ or ‘facts about the composition and dynamics of, or patterns of interpersonal relations within’ in the case of unorganised collectives.
fn4747 Wellman, op. cit., p. 164.
fn4848 My account is similar to Copp’s and May’s but unlike Copp, I do not extend this argument to some unorganised collectives and unlike May, I do not hold that relations between people in groups have a ‘reality’ of their own. See Copp, ‘What Collectives Are: Agency, Individualism and Legal Theory’, Dialogue, 23, 1984 and ‘On the Agency of Certain Collective Entities: An Argument from Normative Autonomy’, Midwest Studies in Philosophy, vol. XXX, 2006 and L. May, The Morality of Groups.
fn4949 An intention can be the result of a decision but one can also act intentionally without necessarily choosing to so act. ‘Someone may intend to build a squirrel house without having decided to do it, deliberated about it, formed an intention to do it or reasoned about it.’ Davidson, ‘Intending’ in his Essays on Actions and Events (Berkeley, University of California Press, 2001), p. 83. See also Bratman, Faces of Intention, pp. 31-33. I use decision and choice interchangeably in this paper.
fn5050 I take no stand here on the question whether unorganised groups can act intentionally or have intentions in action. I take it that philosophers who argue that unorganised groups can have intentions refer to this type of intention.
fn5151 I say ‘public’ instead of formal here in order to include groups that are organised and have a decision-making procedure which is not formal in the sense that it is not ‘officially’ enacted in written statements or organisational charts. The Mafia is, for instance, such a group but I do not mean to suggest that groups like the Mafia do in fact have rights. As I mention in the concluding paragraphs, on the Choice theory, rights of groups would have to be derived from the rights of their members, so a group can only have rights to act or be treated in certain ways only inasmuch as its members have these rights and transfer them to the group.
fn5252 The impossibility results that Arrow highlights, for instance, arise because of the stringent conditions that the procedure is supposed to satisfy, one set to do with the coherence of the collective decision and the other set, with its representativeness. For an accessible explanation and discussion of the Arrow theorem and related issues, see S. Hargreaves Heap, M. Hollis, B. Lyons, R. Sugden & A Weale, The Theory of Social Choice – A Critical Guide (Oxford, UK and Cambridge, USA, Blackwell, 1992), pp. 205-215. For other impossibility results and solutions, see F. Dietrich & C. List, ‘Arrow’s theorem in judgment aggregation’, Social Choice and Welfare, 29 (2007), C. List & P. Pettit –‘Group agency and supervenience’, Southern Journal of Philosophy, suppl., ed. Murray Spindel, 44 (2006) and C. List & P. Pettit, Group Agents. My account is not vulnerable to impossibility results since it prioritises coherence; in other words, a decision-making procedure that does not ensure representativeness, e.g. non-dictatorship, is entirely acceptable as a collective decision-making procedure. Furthermore, I am assuming that most actual decision-making procedures do not rely on majoritarian aggregation of preferences; organised groups normally delegate the decision-making power to a sub-group or a single person within the group. Still, even for groups with a majoritarian decision-making procedure, it seems to me that most of these impossibility results do not affect the kind of choices that are envisaged here, which are binary choices while the impossibility results mentioned occur when the choices are between three alternatives. Groups have to choose which of the powers attached to their rights to exercise, which essentially comes down to choosing between waiving and enforcing their rights and I take it that most decision-making procedures can yield a conclusive result in this case.
fn5353 This supports and strengthens French’s argument for collective intentionality. He does not adequately explain, I think, why corporate decisions are genuinely collective.
fn5454 Actually the fact that one person’s choice may be decisive over the collective choice supports rather than invalidates the argument that a group’s decisions are genuinely collective rather than a mere aggregation of individuals’ choices.
fn5555 I do not mean to suggest that only the group’s members have the authority to institute the procedure nor indeed that all members should authorise the procedure itself. Depending on the view that one takes about legitimate authority, the source of the procedure itself can differ. A whole group can be the author of an action without being the author of the procedure although most liberal views would probably make the former conditional on the latter. If it is thought, for instance, that a monarch has legitimate, probably divine, authority, the monarch’s decisions can count as decisions of the whole people s/he represents; similarly the decision procedure followed by the Mafia has the required authority inasmuch as it is instated by someone with the requisite authority. See also D. Copp, ‘Hobbes on Artificial Persons and Collective Actions’, The Philosophical Review, 89, (1980), especially p. 604.
fn5656 See M. Reiff, ‘Terrorism, Retribution, and Collective Responsibility’, Social Theory and Practice, 34 (2008).
fn5757 This is to say that an individual will not only be held responsible for the outcomes of his/her own action, independently of the others’ actions but his/her own contribution will nevertheless be the main basis for distributing collective responsibility.
fn5858 This is not to say that this is an account of legal rights; it is an account of the moral rights of groups that supports legal ascriptions of rights. This is an advantage inasmuch as legal rights are indicative of certain important intuitions about rights.
fn5959 See A. Cassesse, International Law (Oxford, Oxford University Press, 2001), pp. 46-79 and especially p. 76, where he specifies that ‘in order to be owners of rights and subjects of obligations, it is necessary for them (national liberation movements) to have an apparatus, a representative organisation that can come into contact, as it were, with other international legal persons’.
fn6060 Article 27 of ICCPR, which is the only provision in the two human rights covenants relating to minority rights, grants rights to members of national minorities and does not envisage group rights. See also A. Cassese, Self-Determination of Peoples – A Legal Reappraisal (Cambridge, Cambridge University Press, 1995), pp. 61-62.
fn6161 See T. Pogge, ‘Group rights and ethnicity’ in Ethnicity and group rights – NOMOS XXXIX, (New York and London, New York University Press, 1997).
fn6262 For a criticism of the Interest theory account of group rights, see my ‘Group rights and shared interests’, forthcoming in Political Studies.