* Newman, Dwight, Community and Collective Rights: A Theoretical Framework for Rights Held by Groups (Oxford: Hart, 2011).Google Scholar

1. ‘Theoretically neutral’ in the sense that the ‘Humanistic Principle’, which Newman invokes as the relevant and defining feature of an acceptable moral theory, is intended to avoid alienating proponents of any specific moral/political theory, e.g., deontology or utilitarianism, liberalism or communitarianism. See Newman, Dwight, Community and Collective Rights: A Theoretical Framework for Rights Held by Groups (Oxford: Hart, 2011) at 12 Google Scholar [Newman].

2. Ibid at 4.

3. Ibid at 5. It is worth noting that this passage is the first statement of what becomes a significant distinction within and limitation upon the scope of Newman’s project; he is not making a ‘political’ argument, meaning that his framework is not intended to apply to the larger political community. E.g., whether Canada as a polity holds rights as a collectivity, either against its citizens or against other nation-states, is a question outside the intended scope of his ‘moral’ argument; he is not looking to present an account of when and how the State legitimately exercises political authority. This narrow focus becomes clearest toward the end of the work, when Newman discusses the conditions under which the larger political community ought to accept and institutionalize the rights claims of collectivities existing within their borders. See ibid at 196-203 and ch 9.

4. Raz, Joseph, The Morality of Freedom (Oxford: Clarendon Press, 1988) at 166 CrossRefGoogle Scholar [Raz]. In the context of the broader literature on the structure of rights Raz’s position is, contrary to Newman’s characterization, quite controversial. E.g., those characterized as ‘Will Theorists’ either do not or would not be likely to accept his position. See, e.g., Hart, HLA, “Are There Any Natural Rights” (1955) 44 (2) Phil Rev 175 CrossRefGoogle Scholar; Hart, HLA, “Legal Rights” in Hart, HLA, Essays on Bentham (Oxford: Clarendon Press, 1982)Google Scholar; Wellman, Carl, A Theory of Rights: Persons Under Laws, Institutions and Morals (Totowa, NJ: Rowman & Allanheld, 1985)Google Scholar; Simmonds, NE, “Rights at the Cutting Edge” in Kramer, , Simmonds, & Steiner, , eds, A Debate Over Rights (Oxford: Clarendon Press, 1998)Google Scholar; Hillel Steiner, “Working Rights”, ibid; Sumner, Wayne, The Moral Foundation of Rights (Oxford: Clarendon Press, 1989)Google Scholar. Others object to Raz’s account of rights owing to the way in which it represents the correlativity of rights and duties. See, e.g., Matthew Kramer, “Rights Without Trimmings” in A Debate Over Rights, ibid at 43-49.

5. Newman, supra note 1 at 11.

6. For those familiar with the broader philosophical literature on rights, it is worth noting that Newman does not adopt the ‘conventional terminology’ inasmuch as he does not rely on Hohfeld’s ‘table of jural relations’, i.e., Hohfeld’s distinctions between claims, privileges, powers, and immunities. See Hohfeld, WN, “Some Fundamental Legal Conceptions as Applied in Judicial Reasoning” in Cook, Walter Wheeler, ed, Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays (New Haven, CT: Yale University Press, 1923)Google Scholar. One implication of this omission is that every time Newman makes reference to ‘rights’, he is unable to specify whether he means to reference claims, privileges, powers, or immunities. In earlier drafts of this Critical Notice, I toyed with a series of criticisms based on this omission. Upon further reflection, I decided that Newman’s failure to discuss Hohfeld could be charitably interpreted as an editorial choice that does not significantly affect the intelligibility of his arguments. I continue to believe that his arguments could have been expressed with greater precision had Hohfeld’s table been invoked, but will not be devoting any further effort to explicating the sense in which his arguments are ‘less-precise-than-they-could-be’.

7. Raz, supra note 4 at 194.

8. Newman, supra note 1 at 12.

9. Kymlicka, Will Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Clarendon Press, 1995) at 45 Google Scholar [Kymlicka].

10. Ibid at 35.

11. Ibid at 36.

12. Ibid at 45-47. Rather than the assertion of group-rights being restricted in some manner to the ‘representatives’ of the group.

13. See Newman, supra note 1 at 15-25 for his rejection of the descriptive value of Kymlicka’s ‘internal restrictions/external protections distinction’ and at 26-27 for a preliminary challenge to the normative value of the distinction.

14. Ibid at 28.

15. “The aesthetic properties of a sculpture, for instance, seem to be supervenient properties that cannot vary without a variation in base properties, these being the physical qualities of the sculpture.” Ibid at 37.

16. Ibid at 38.

17. Dworkin, Ronald, Law’s Empire (Cambridge, MA: Harvard University Press, 1986) at 168.Google Scholar The community is not, for Dworkin and by extension Newman, an agent. Their idea is that we can only properly understand the morally relevant features of communities (intentions and actions) if we describe them using the language of agency. So we personify the collectivity to describe it, without actually arguing that it is, ontologically, an agent.

18. Newman, supra note 1 at 44.

19. Ibid at 52.

20. Ibid at 49. E.g., corporate aims (are supposed to?) determine the actions of individual members only when those members are ‘on the clock’, while religious aims are often applicable at all times in the lives of members. So the responsibilities of the corporate collectivity toward its members will most often be applicable when their members are fulfilling their roles in the corporation, whereas the responsibilities of a religious collectivity will reflect the greater ‘thickness’ of religious aims.

21. Ibid at 49-50.

22. Ibid at 51. The idea being that, e.g., a collectivity whose members have voluntarily chosen to enter the group will have a different set of moral responsibilities toward its members than a group wherein membership is a function of birth.

23. See, e.g., ibid at 54. “If a corporation has a responsibility to protect confidential information of employees, it needs a right to some degree of privacy to assert when a nosy neighbour comes knocking at the door requesting good gossip from payroll and other records.”

24. The argument is a condensed version of an earlier published article. See Newman, Dwight G, “Collective Interests and Collective Rights” (2004) 49 Am J Juris 127 CrossRefGoogle Scholar.

25. To defend the claim that it is possible for collectivities to hold interests that are primary over the interests of individual members, Newman combines Raz’s idea that at the heart of every collective right there is an ‘inherently public’ good, i.e., a good wherein no single members’ interest could serve as a sufficient reason to justify the corresponding imposition of duties, with Denise Réaume’s alternative explanation that what defines such goods as ‘public’ are the participatory benefits enjoyed by the members of the group. See Réaume, Denise, “Individuals, Groups, and Rights to Public Goods” (1988) 38 (1) UTLJ 1 CrossRefGoogle Scholar. This hybrid position is articulated and defended by Newman with the example of a hockey team that plays on the pond in Bob’s backyard, where Bob is a member of the team; the collectivity has an interest in the pond freezing that is primarily an interest of the collectivity as such, and only derivatively an individual participatory benefit of Bob’s. See Newman, supra note 1 at 67-70.

26. Ibid at 79.

27. Ibid at 80.

28. “A collective interest improves the life of a collectivity, something to which the humanistic thesis does not explicitly refer. There must be further moral principles ensuring that the flourishing life of a morally valuable collectivity improves the lives of individual members.” Ibid at 103.

29. Ibid at 109, 115: “the Service Principle is an ongoing moral requirement for collectivities. As stated, not every collective act or interest need conform to the interests of every individual member. But the collectivity must keep faith with their ongoing membership.” So, e.g., “the Quebecois community is valuable insofar as it is morally worth preferring to what could be achieved without the community’s mediation and pursuit of collective interests” at 116.

30. Ibid at 109.

31. Ibid at 121-22.

32. Ibid at 126. Giving a precise meaning to ‘due weight’ demands a particular moral/political theory and so is beyond the scope of Newman’s theoretically neutral framework.

33. Ibid at 131.

34. Ibid at 137.

35. E.g., the Klu Klux Klan.

36. Ibid at 143.

37. Ibid at 177.

38. See, e.g., Newman’s explanation of the grounds upon which the Oxford Jurisprudence discussion group is entitled to exclude those not interested in discussing jurisprudence, or expelling those not interested in continuing to discuss the topic. Ibid at 179-80.

39. Ibid at 189.

40. Ibid at 196.

41. Ibid at 205.

42. Ibid at 219.

43. Ibid at 13.

44. I am indebted to Anthony Skelton for having suggested the names I use for this distinction, i.e., a ‘constitutive’ and ‘non-constitutive’ account of the significance of autonomy. I first explicated this distinction in my PhD dissertation. Robb, RD, Rights, Interests, Choices, and Autonomy (PhD Thesis, The University of Western Ontario, 2007)Google Scholar [unpublished].

45. Kantian deontology is, I believe, the only example of a moral theory that invokes a constitutive account of the significance of autonomy. Inasmuch as there are variations of Kantian deontology (one variant of which is Kant’s articulated practical philosophy), their unifying characteristic is that they understand autonomy in this way.

46. I say a ‘variation’ of Ross’ pluralism because none of the six prima facie moral duties he maintains that we all know as a matter of intuition is explicitly directed at showing respect for the autonomy of others. See Ross, WD, The Right and the Good (Oxford: Oxford University Press, 1930) at 21 Google Scholar for his statement of the six principles upon which our prima facie duties are based.

47. See Sumner, Wayne, The Moral Foundation of Rights (Oxford: Clarendon Press, 1989)Google Scholar. See, e.g., at 205 where he asserts that autonomy is “one central ingredient of well-being.” Inasmuch as Sumner’s indirect Consequentialism is meant to provide a plausible justification of a moral right as the normative mechanism that protects individual autonomy, it seems reasonable to characterize his treatment of autonomy as more than simply an instrumental value, even if he does not characterize it explicitly as a ‘fundamental’ or ‘ultimate’ value.

48. Bentham, Jeremy, “An Introduction to the Principles of Morals and Legislation” in The Works of Jeremy Bentham, ed by Bowring, John (New York: Russell & Russell, 1962) at 2.Google Scholar

49. My distinction between a constitutive and non-constitutive account of the significance of autonomy presupposes a second distinction: there is a difference between a definition of autonomy and an account of the significance (or role or weight or importance) of autonomy as given by some particular normative theory. A definition of autonomy tells us what autonomy is (its nature) whereas an account of the significance of autonomy tells us how important autonomy is in the context of a specific moral/political theory (which could, but need not be, considered a part of a definition of autonomy).

50. Kant, Immanuel, Groundwork of the Metaphysics of Morals, ed by Gregor, Mary (Cambridge: Cambridge University Press, 1997) at 4 Google Scholar:399.

51. Ibid at 4:421.

52. Kant, Immanuel, The Critique of Practical Reason, ed by Gregor, Mary (Cambridge: Cambridge University Press, 1996) at 5:30 Google Scholar [emphasis added].

53. I do not mean to imply that Kant’s account of the role of autonomy offers the only, or even the most plausible, justification of liberalism (though Rawls’ clearly thought that it did). As we will see however, the ideas at the heart of liberalism are consistent with and/or drawn directly from Kant’s view.

54. Rawls, John, “A Kantian Conception of Equality” in John Rawls: Collected Papers, ed by Freeman, S (Cambridge, MA: Harvard University Press, 1999) 254 at 255Google Scholar.

55. Ibid at 266. A ‘well-ordered society’ is, according to Rawls, one in which the two principles of justice effectively regulate the society’s basic institutions and in so doing “regard individuals as free and responsible masters of their aims and desires….”

56. Kymlicka, supra note 9 at 80-81.

57. Newman, supra note 1 at 12.

58. Newman, supra note 1 at 79 [emphasis added].

59. Newman, supra note 1 at 113.

60. Ibid at 121.

61. Ibid at 116.

62. Ibid at 154.

63. See Green, Leslie, “Rights to Exit” (1998) 4 Legal Theory 165 CrossRefGoogle Scholar.

64. Newman, supra note 1 at 158.

65. Ibid at 160.

66. Ibid at 157.

67. Ibid at 177 [emphasis added].