-Caveat Lector- <A HREF="http://www.ctrl.org/"> </A> -Cui Bono?- From http://www.britannica.com/bcom/original/article/0,5744,4727,00.html {{<Begin>}} Group Rights: Can Equality and Difference be Reconciled? By David Ingram, special to Britannica.com Thomas Jefferson thought it "self-evident" that "all men" are endowed--endowed equally--with "inalienable" rights. But two centuries later this notion seems less self-evident and more controversial. Just when minority groups appear to have gained more and more equal treatment, they are now demanding special rights. Sikhs, Orthodox Jews, and Muslims have gained religious exemptions from military service; American Indians living on tribal reservations have gained immunity from civil suits; and women and minorities have gained preferential treatment in hiring, promotion, and placement. Group rights like these would seem to violate the hallowed principle of equal treatment under the law. It is because people "are created equal," in Jefferson's words, that they merit equal rights. But group rights treat people differently depending on what group they belong to. The idea that equal citizenship means treating everyone alike implies that there is just one set of rights that applies to all of us. In the United States, for instance, there is only one set of rights for defendants standing trial. Ideally criminal justice should be "blind" with respect to their gender, race, religion, and class. But while sameness of treatment seems to be the prevailing ideal underlying criminal law, the same cannot be said of social law, which treats individuals differently depending on their income, age, gender, and medical status. Belonging to the group of persons who are retired, elderly, or disabled entitles one to Medicare and Social Security benefits not available to others. What's more, although we normally think that our civil rights are as "blind" to our differences as the right to fair treatment in criminal courts, this is not entirely so. Take the First Amendment guarantee of religious freedom. Thanks to a 1972 Supreme Court ruling, the Amish in Wisconsin are exempt from state laws requiring two years of high school for children. If the Amish have such a right because they want to "protect" their children from secular society, why, too, don't Catholics, atheists, or any other group that wants to educate its children in the manner it sees fit? This example illustrates another reason group rights are controversial: their exercise sometimes collides with basic rights that extend to individuals. The right of Amish parents to remove their children from high school--ostensibly to socialize them into a religious way of life removed from the corrupting influences of the modern world--arguably infringes on the right of Amish children to a more rounded education. And affirmative action for women and minorities arguably violates the rights of white men to be treated solely on the basis of their individual merits. Even redrawing the boundaries of congressional districts to ensure that racial minorities constitute a majority capable of electing representatives of their choice seems to tacitly discriminate against individuals in those districts who don't identify with the racial group being empowered. This last example touches on a familiar tension inherent in any democracy: between the right of the majority to determine the direction of the group and the right of the minority not to be oppressed by the majority. Allowing the minority to exit the group can resolve this tension in a manner that enhances everyone's freedom. Dissidents within a religious community, for instance, can leave and form a new community. But in many cases this is not a viable option-- for political dissidents who are not permitted to emigrate, for example, or for women and children who are tied to the communities and families that oppress them. Neither was it a viable option for Evangelical Protestant converts living on New Mexico Pueblo reservations in the 1970s; leaving behind their ancestral lands arguably would have been more oppressive than continuing to suffer the ostracism and denial of communal resources that were visited upon them by their fellow tribesmen. Why is the idea of group rights compelling? Consider the fact that most people currently enjoy rights that are not extended to everyone equally: Children receive protection from full prosecution as adults (though this is being contested now); the elderly and disabled receive Medicare; the poor receive food stamps; and most business owners receive some form of "corporate welfare," much of it in the form of tax breaks. Of course these privileges, potentially available to anyone, do not affect our equal possession of constitutional rights. The same, however, obviously cannot be said of the group rights that apply to racial, religious, and ethnic minorities. Conflicting Conceptions of Rights Philosophers who identify with the liberal tradition typically argue against group rights, holding that rights pertain to individuals, not groups. For example, although individuals often exercise their freedom of religion by participating in religious groups, this freedom is first and foremost a matter of individual private conscience. Religious groups are voluntary associations that enable individuals to express their private feelings in a public way. According to this view, the rights of such groups amount to nothing more than the rights of their individual members to associate and believe as they please. Because, in liberal theory, the group has no rights that extend beyond the rights of its individual members, conflicts between what the group wants and what any individual has a right to are always resolved in favor of the latter. But who decides what the individual has a right to? Whether they conceive of rights as commanded by God, necessitated by self- preservation, or stipulated by "contracts" between real or abstract people, most liberals assume that our common faculty for reasoning necessarily leads us to have common conceptions of rights. Communitarians, on the other hand, point out that whatever reasoning mechanisms people have in common are invariably shaped by the conflicting customs governing the particular communities into which they are socialized. So construed, groups are more than mere external means for expressing our individual preferences; they form the very core of who we are. This claim that our reasoning is conditioned by group customs not shared by everyone raises profound difficulties for most liberals. Merely agreeing that some rights are reasonable does not resolve disagreements about their precise meaning, scope, and ranking. Take Jefferson's reference to our "equal right" to "life, liberty, and the pursuit of happiness." Many liberals hold that the right to liberty is more important than the right to life itself; for freedom to do as one wishes, without interference from others, is the basic prerequisite for life. Communitarians, however, hold that this freedom is meaningless without the provision of protection, health, food, shelter, clothing, and the communal necessities of life. Two hundred years of philosophical bickering has yet to resolve this dispute. Even if we agreed on the priority of liberty, we would still disagree about its precise scope and meaning. Should people be free to sell themselves into slavery? Should business owners be free to dictate working conditions to their employees any way they see fit? Should women be free to seek abortions without regulation? Should people be free to say whatever they want, buy and sell whatever they want, and do whatever they want? If not, then what exactly are the appropriate limits on our freedom and how do we decide on them? Communitarians have one simple answer to this question: The appropriate limits are whatever the group in question says they are. For instance, if those living in a particular community all happen to have been raised in the same church and that church was opposed to abortion except in cases in which the mother's life was endangered, we would simply accept this as the appropriate limit on the right to abort. If the majority of our group agrees on the concrete meaning and scope of basic rights, then it seems that conflicts between the group and its individual members can again be resolved straightforwardly. In this case the individual would have no rights against the group other than what the group has designated. Unfortunately, this solution works only if the individual in question belongs to a single community--a condition that seldom, if ever, obtains. The community in which a person was raised might be overwhelmingly Catholic and opposed to abortion, but the county, state, and nation to which the person also belongs may think otherwise. What, in other words, are the precise boundaries of one's "community"? The communitarian, then, is no more successful than the liberal in telling us what our specific rights should be. Just look at what happens when he or she tries to tell us which "universal" rights undergird international law. Here, national communities strongly disagree in their ranking and interpretation of rights. The U.S. State Department, for example, holds that civil, political, and contractual rights are of higher priority than either welfare or cultural rights. But China, Malaysia, and several other countries dispute this view, placing a higher value on familial unity and traditional order. But why worry about cultural relativism between nations when the issue of multiculturalism is in fact domestic? Hence we return to our initial questions: How can equality before the law be made compatible with group-specific rights and differential treatment of cultural minorities? How can we have cultural diversity without going down the path of social fragmentation? And how do we decide which groups are entitled to be recognized as representing legitimate communities and which are not? Equality and Difference Reconsidered The American legal philosopher Ronald Dworkin has argued that equality can be made compatible with differential treatment only if it is interpreted to mean showing equal respect and concern for each individual. This interpretation forbids treating persons differently whenever doing so is intended to demean or oppress them. According to Dworkin affirmative action preferences do not have this intent. Unlike the racial preferences that were used in the American South to oppress blacks, such preferences are not intended to stigmatize whites as inferior beings of a lower caste. Nor do they disrespect whites by preventing consideration of individual merit. But because racism has had a profound impact on educational opportunity, defining merit solely in terms of test scores and grades does in fact discriminate against blacks. Race becomes relevant to assessing merit in societies that have a history of racism in two major ways, both of which can be demonstrated by examining entrance requirements for professional schools. To begin with, racism unfairly privileges white men, who generally have access to better education and do not suffer discrimination in primary or secondary schools. Moreover, racism makes it less likely that there will be an adequate pool of white men who will be willing to serve low-income minority communities desperately in need of doctors, lawyers, teachers, and other trained professionals. Assuming that members of minority communities might have greater motivation to serve their communities--and assuming that members of minority communities might possess linguistic and cultural competencies that enable them to serve those communities better than outsiders--race and ethnicity are sometimes relevant in assessing a candidate's qualifications. One might continue to object to affirmative action preferences and other group rights on the grounds that they lead to social fragmentation. Addressing this objection head-on, the Canadian political theorist Will Kymlicka observes that it is a grave mistake to assume that all group rights are intended to protect groups from assimilation. Of course, minorities struggling to preserve their cultural identity against absorption into the mainstream will sometimes demand the special protection afforded by group rights. In some cases these rights stem from prior historical commitments, as in the sovereignty rights established by treaty between the U.S. government and various Indian tribes. In other cases they stem from constitutional guarantees of religious freedom, as in the case of exemptions granted to religious minorities like the Amish. Yet in the cases of affirmative action preferences, provisions for bilingual education, and a host of other policies, group rights aim not at preventing assimilation but at promoting it. Indeed, it could be argued that most group rights are complex in origin and purpose, serving to integrate, rather than simply assimilate, cultural minorities into mainstream society. Unfortunately, none of these attempts to rescue group rights from accusations of promoting fragmentation and injustice tells us which groups deserve special protection. Philosophers have not paid enough attention to the question of what makes some groups worthy candidates for special rights and others not. In general, it appears that groups meriting special rights are those whose members need to be protected against external threats to their well-being or cultural integrity. Arguments in support of affirmative action and religion-based exemptions typically proceed along these lines. But well-being and cultural integrity are highly elusive concepts. Some white supremacists, for example, have appealed to well-being and cultural integrity in justifying their support of racist segregation. Even if we extend group rights only to oppressed minorities who profess no racist agendas, it remains unclear what protecting their cultural integrity from external threats amounts to. For example, some Qu�b�cois nationalists view exposure to English-language culture as an external threat to the integrity of French-Canadian culture. Accordingly, they have successfully lobbied for laws requiring the use of French in business contracts and schools. Yet one might argue against such provisions on the grounds that no cultures--and, by implication, no group identities--can or should be insulated from outside "contamination." If cultural tainting is an unavoidable by-product of allowing people to freely communicate with others outside their group, then how can liberal societies oriented toward safeguarding the freedom of their citizens justify restricting communication for the sake of maintaining cultural purity? Once we abandon the notion that cultural groups possess self-contained, homogeneous identities, it is no longer clear why they should merit group rights aimed at protecting against cultural contamination. Yet what would it mean for us to give up the notion of group rights altogether? As long as people continue to identify themselves--and be identified by others-- in terms of groups, the possibility that some will be treated differently because of their group identification will always exist. When different treatment threatens to violate equal treatment--as in the case of racist, sexist, ethnocentrist, and religious discrimination--special legal remedies may be necessary to protect those on the receiving end. In these cases group rights can promote, rather than obstruct, equal treatment through candid recognition of real-world inequalities and differences. David Ingram teaches philosophy at Loyola University in Chicago. He is the author of Critical Theory and Philosophy and Group Rights: Reconciling Equality and Difference. 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