Three Models of Group-Differentiated Rights
Group-differentiated rights, or rights that vest on the basis of an individual's membership in a particular social or cultural group, are an increasingly common and controversial aspect of modern liberal legal systems. In justifying such rights, theorists have largely focused on demonstrating the conformity of group-differentiated rights with principles of liberal neutrality. This article suggests that group-differentiated rights present a further, largely unrecognized, potential moral cost from the perspective of liberal theory. Group-differentiated rights threaten to impede individual self-invention. The first section of the article introduces the essential terms and structure of the contemporary debate over group-differentiated rights. The second section describes analytically the processes by which rights categorize persons and influence social identity. The third section then constructs a liberal theory of membership, the central precept of which is individual constitutive autonomy. The fourth section describes three models (ascription, affirmation and culturalization) of the process by which social and cultural groups and identities may be constituted by rights, and evaluates each model according to the principles which inform the liberal conception of membership previously constructed. The analysis demonstrates that while the group-differentiated form of right does indeed threaten individual constitutive autonomy, the true extent of any loss depends in significant part upon the particular model invoked.
Eric J. Mitnick, Three Models of Group-Differentiated Rights, 35 Colum. Hum. Rts L. Rev. 2, 215, (2004).