Value Collectivism, Collective Rights, and Self-Threatening Theory

Oxford Journal of Legal Studies, Issue 1, 2013

22 Pages Posted: 10 Oct 2012

See all articles by Dwight G. Newman

Dwight G. Newman

University of Saskatchewan College of Law

Date Written: September 15, 2012

Abstract

This review article discusses the conception of collective rights necessary to ground contemporary entrenchments of minority educational rights, Indigenous rights, and collective bargaining rights, as discussed in Miodrag Jovanović’s book, Collective Rights: A Legal Theory. Jovanović argues for a role for value collectivism in elucidating a rationale for the entrenchment of rights held by what he conceives of as pre-legally existing groups with interests not reducible to those of their individual members. This approach can offer an explanation for the entrenchment of minority educational rights and Indigenous rights. The article extols Jovanović’s attempt to grapple with an explanation for rights not explained within standard liberal theory, even in Will Kymlicka’s attempt to justify minority rights within liberalism. The review also critiques the argument offered by Jovanović. First, the review argues that a full-fledged adoption of value collectivism is not necessary to provide a justification for irreducibly collective rights and that the unnecessary adoption of such a theoretical construct may, in practical terms, work counter to the ongoing entrenchment of the rights it seeks to justify, thus becoming what it will categorize as a ‘self-threatening theory.’ Second, the review argues that Jovanović’s stark division of rights held by pre-legally existing groups and legally constituted collective entities undermines his account’s ability to explain collective bargaining rights of trade unions that are entrenched in some jurisdictions.

Keywords: rights theory, value collectivism, collective rights

Suggested Citation

Newman, Dwight G., Value Collectivism, Collective Rights, and Self-Threatening Theory (September 15, 2012). Oxford Journal of Legal Studies, Issue 1, 2013, Available at SSRN: https://ssrn.com/abstract=2159894

Dwight G. Newman (Contact Author)

University of Saskatchewan College of Law ( email )

15 Campus Drive
Saskatoon, Saskatchewan S7N 5A6
Canada
(306) 966-4847 (Phone)

HOME PAGE: http://law.usask.ca/find-people/faculty/newman-dwight.php

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