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Communitarianism and Collective Rights· Horacio Spector Communitarianism and Collective Rights· Abstract: The article distinguishes metaphysical from practical communitarianism. Meta­ physical communitarianism is alleged to involve a concealed ideological element, which leads its adherents to stereotypes when trying to capture the essence of the modern self. The claim is examined that minorities, or other ethnic and cultural groups have collective rights, either moral or legal in nature. Justifications of collective rights resorting to the value of cultural identity are said to be in need of explaining why the proper way of protecting such value is through rights. It is argued that practical communitarianism's case for collective rights needs embracing meta-normative and normative relativism, whose application to political action yields consequences at odds with widespread ethical intuitions. 1. Introduction It is well known that the traditional doctrine of human rights, developed in liberal political practice, accepts as an axiom that only individual persons can be the holders of such rights. The individualist doctrine of rights reigned almost unop­ posed up to a few years ago, accepted both by libertarians and by welfare liberals. Thus Nozick begins his Anarchy, State, and Utopia by saying "Individuals have rights ... ", and the whole of Rawls's theory of justice, in Ronald Dworkin's inter­ pretation at least, is based on the idea that individuals should be treated with equal consideration and respect. Neither of these authors defends the existence of rights not belonging to individual persons. Recently, however, the idea that an ethnical or a cultural minority is an entity capable of possessing interests morally deserv­ ing protection has won prestige while political philosophy has been experiencing a renascence of Aristotelian- or Hegelian-inspired communitarianism. The essays of Alasdair MacIntyre (MacIntyre 1981), Michael Sandel (Sandel 1982), and Charles Taylor (Taylor 1975; 1979; 1985), among others, contain vigorous criti­ cisms of the conception of the self presupposed in contemporary liberal philoso­ phers like Rawls and Nozick. In Kymlicka's words, "a dominant theme of communitarian writings is the insensitivity of liberalism to the virtues and impor­ tance of our membership in a community and a culture" (Kymlicka 1989, 1). The * I acknowledge with gratitude the support of the John Simon Guggenheim Memorial Foundation, and likewise the suggestions I received from my colleagues at the School of Law of the Universidad Torcuato Di Tella. Analyse & Kritik 17 (1995), S. 67-92 © Westdeutscher Verlag, Opladen 68 Horacio Spector criticisms - Kymlicka goes on to say - revolve around the feeling that liberalism, "in a misguided attempt to protect and promote the dignity and autonomy of the individual, has undermined the associations and communities which alone can nurture human flourishing" (Kimlycka 1989, 9). Elsewhere (Spector 1987) I have suggested that one can distinguish between two types of communitarianism: value- and metaphysical communitarianism. Value-communitarianism maintains that certain collective entities, like communi­ ties, collectivities or minorities, are subjects or bearers of per se value. I Extreme value-communitarianism holds that individual persons have no value in them­ selves but only as members of some collective entity. Defined in this way, value­ communitarianism runs afoul of value-individualism, which claims that individ­ ual human beings are the only beings bearing per se value. By contrast, metaphysical communitarianism maintains that people are made up of their metaphysical connections or ties with communities. From this stand­ point the recognition of rights to communities, even when these are the only rights the social order recognises, cannot stifle persons because they achieve their identity thanks to their insertion in communal life. In an extreme organicist version, people not only do not have an existence independent of the community but neither do they have one different from it, as persons are only phases or moments of communal development. The distinction between value- and metaphysical communitarianism, though important, is incomplete. Actually, as Michael Hartney makes clear (Hartney 1991, 294-5), the practical or normative issue about collective rights is a mixture of three different questions: (1) whether communities have a per se value (value­ communitarianism); (2) whether the value-importance of communities justifies their having collective moral rights (ethical communitarianism); and (3) whether the protection of certain values or moral rights is best canalized by the attributes oflegal collective rights (techno legal communitarianism). With Hartney's classifi­ cation we get the following picture: Varieties o(Communitarianism ____ Metaphysical Communitarianism ___ _____ Value- Normative ___ Ethical Technolegal In the following section I shall set out the essence of the contrast usually drawn between the metaphysical conceptions of the self (presumably) defended by liber- By 'per se value' I understand the same as Raz: a thing has per se value when its exis­ tence is valuable without its mattering what other things exists. This is to be distinguished from the instrumentally valuable, whose value depends on what it promotes or fosters. But it should be emphasized that what is per se valuable does not exhaust what is intrinsically so. Constituent goods are likewise intrinsically valuable, elements of what is good per se which contribute to its value, i.e. elements without which a thing which in itself is valu­ able would be less so (Raz 1986, 200). Communitarianism and Collective Rights 69 als and communitarians. I shall suggest that both the conception of the embedded or situated citizen in communitarianism, and that of the atomized citizen, attrib­ uted to liberalism, are partialized and erroneous descriptions which must give place to a more credible pluralist anthropological outlook, albeit less striking metaphysically and unable to function as the ultimate basis of a political theory. In section 3 I shall deal with a few attempts to reduce the axiological communitarian justification of collective rights to an expanded liberal theory. In section 4 I shall endeavour to show how those attempts fail and I shall suggest that communitarian value judgements cannot be reduced to liberal parameters. Once value-communi­ tarianism is separated from liberalism, in sections 5 and 6 I proceed to investigate if there is any justification of collective rights, both moral and legal ones. My negative reply to this question is based substantially on the essential connection I perceive between the notion of rights and the idea of human rational­ ity. My point is that if this connection is to be preserved, the communitarian must adopt a relativist theory of rationality whose application to the public domain brings forth anti-intuitive consequences in terms of widely shared values. I like­ wise suggest that liberalism is best interpreted as a theory resting upon objetivist epistemological assumptions. 2. Metaphysical Conception of the Self and Political Theory The individualist conception regards the self as prior to or independent of its ends, that is, as a value-empty will capable of choosing its ends keeping at a distance the ends, attachments, and values endorsed by the community. In Sandel's expla­ nation, the individualist self is unencumbered, and by this he means that its iden­ tity is never tied to the aims and interests it may have at any moment. Indeed, "for the unencumbered self, what matters above all, what is most essential to our personhood, are not the ends we choose but our capacity to choose them" (Sandel 1992, 19). Instead, according to communitarians the self is made up of communal ends and values, i.e. predetermined by the culture of the community of which it forms part. The communitarian self is a value-laden entity; its existence is intimately and indissolubly linked to the existence of the community. Since in the individualist conception the self is devoid of communal values, the role of practical reasoning is to choose ends, values and life plans. Theoreti­ cally, the self of liberalism may choose its ends and values in complete isolation from shared communal values, having no need of and being entirely independent of the values animating the existence of its community. The communitarian conception of the self differs radically in this aspect. For communitarians the self is made up of certain ends which are endowed with meanings in the community. The self of communitarianism does not choose ends and values but communal ends and values define its own identity. Thus, the 'practical reasoning' of the communitarian self does not imply so much the idea of choice as that of self­ discovery. Here the fundamental question is not "What ends am I to choose?" as "Who am I?" (Kymlicka 1989,53). 70 Horacio Spector One of the most interesting contributions in this field is Kymlicka'sattempt to dissolve the communitarian-Iiberal duality in the conception of the self. In the first place - he argues - when the liberal affirms that the self is prior to its ends, he does not mean that one can conceive a self without ends, but without its present ends. This means that the self is prior to its ends "in the sense that no end or goal is exempt from possible re-examination" (Kymlicka 1989, 52). Thus, the liberal does not commit herself with the implausible metaphysical thesis that there is, or can be, a completely unencumbered self. In the liberal vision, the self is not a tabula rasa, but neither is it an entity with rigid, unmodifiable ends. Defined thus, liberalism is not necessarily incompatible with a communitarian view of the self; specifically, it is not incompatible with a communitarian position that admits that it is possible for the self to re-examine its ends. In the second place, Kymlicka points out that, though communitarians like Sandel hold that the self is constituted by its ends, they admit the possibility of a 'reconstitution' or change of the self thanks to the exercise of practical reasoning. Moral or religious conversions (e.g.
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