**2. Rights**

Despite very stiff competition, the notion of *rights* is perhaps the most confused concept in our political vocabulary. Human rights are the most common way of addressing normative issues in politics worldwide and are central to many modern theories of ethics, of politics and to many laws. However, the varied types of rights—including but not limited to human rights, natural rights, civil rights, moral rights, subjective rights, and legal rights—are often conflated when, in fact, each can refer to quite distinct entities and have few direct connections (Marshall 1992, pp. 661–76). Within each of these categories, there are many further possible subdivisions. For instance, Hohfeld (1919) developed a very complex fourfold distinction of rights as privileges or liberties, claims, powers, and immunities.

Among international human rights treaties, the International covenant on Civil and Political Rights (ICCPR) subjects its rights guarantees to different limiting conditions; some are non-derogable while others are derogable under certain emergency conditions. The International Covenant on Economic, Social and Cultural Rights presents its rights as necessary goals rather than as the limiting conditions that predominate in the ICCPR. The rights that stem from governmen<sup>t</sup> restraints can be enacted by almost any functioning government, whereas there may be legitimate reasons why a governmen<sup>t</sup> cannot fulfill other economic or political rights at a particular time (Marshall 2020a).

Indeed, the very word *right*, especially in the United States, often loses specific content and becomes merely a general term implying approval or disapproval, commendation or criticism. For instance, I could say "you have no right to speak to me like that," meaning that you are wrong to do so, without implying that you have no legal right to insult me. Something desirable becomes treated as a right and something undesirable as a no-right.

Additionally, within current political battles, opponents usually vie to appropriate the mantle of rights for their own position. As Sumner (1987, p. 8) pointed out: "it is the agility of rights, their talent for turning up on both sides of an issue, which is simultaneously their most impressive and their most troubling feature. Clearly, interest groups which agree on little else agree that rights are indispensable weapons in political debate." In Ronald Dworkin's terms, rights are "trumps", and it will not help you to simply have high cards of your own, such as fairness, justice, equity, or propriety: you need your own trump to beat a trump. In this situation, rights are especially potent rhetorical weapons: "if one interest group has built its case on an alleged right none of its competitors can afford not to follow suit ... they will tend to proliferate and to escalate" (Sumner 1987). Such proliferation and escalation is apparent throughout the world, and especially in the United States.

As a result, despite widespread emphasis on rights, there is little clarity about what we mean or should mean when we discuss issues related to rights, and this has worsened when the differences over institutions are added.

#### **3. Historical Institutional Rights**

In the United States, the emphasis on individual rights has resulted in what Glendon (1991, pp. x–xi, 14) describes as an "excessive homage to individual independence and selfsufficiency," and a focus on the "individual and the state at the expense of the intermediate groups of civil society" (Frohnen and Grasso 2009). This, in turn, makes it "extremely difficult for us to develop an adequate conceptual apparatus for taking into account the sorts of groups within which human character, competence, and capacity for citizenship are formed ... For individual freedom and the general welfare alike, depend on the condition of the fine texture of civil society—on a fragile ecology for which we have no name" (Glendon 1991, pp. 109–10). 2 Even Ignatieff (2003), who holds that all rights are finally individual, cautions that an exclusive focus on individual human rights as the source of political norms can become idolatry.

Here, I will focus on legal rights and argue that they may be held by institutions in terms of self-definition, self-governance, and self-directed action and expression. In the West, analogous rights have been held by institutions for millennia. Some of these, of course, have been subordinate political entities, such as cities, towns, villages, and colonies that were granted charters to exercise rights and powers or were otherwise founded on a covenant and oath (Berman 1983, p. 393).

However, such rights have been and are held by more than political entities. One prime example is, of course, the Church, which has had the right to own land, carry out ecclesiastical trials, choose or appoint leaders, determine doctrine, gran<sup>t</sup> academic credentials, run hospitals and schools, and perform multifarious functions related to the lives of its members or constituents. As Berman (1983, pp. 268–69) wrote: "The competition between the ecclesiastical and the secular court had a lasting effect on the Western legal tradition. Plural jurisdiction and plural legal systems became a hallmark of Western legality ... Underlying the competition ... was the limitation of the jurisdiction of each." Similarly, Sabine (1961, p. 180) wrote "The rise of the Christian Church, as a distinct institution entitled to govern the spiritual concerns of humankind in independence of the state, may not unreasonably be described as the most revolutionary event in the history of western Europe, in respect both to politics and to political thought." Henry Kissinger also opined "Restraints on governmen<sup>t</sup> derived from custom, not constitutions, and from the universal Catholic Church, which preserved its own autonomy, thereby laying the basis—quite unintentionally—for the pluralism and the democratic restraints on state power that evolved centuries later" (Kissinger 2001, pp. 20–21).<sup>3</sup> I will return to church and state questions below.

Other organizations, such as guilds and professional societies, also had rights to determine the training and qualifications and character needed for membership and to perform particular lines of work. They were understood as much more than mere means of work and income. The term "profession" itself partly derives from the profession of faith and commitment that a candidate made on entry into the guild's order, analogous to entering a monastic order (Gedefroy [1881] 2019).<sup>4</sup> Indeed, Berman describes guilds as originally "sworn brotherhoods whose members were bound by oaths to protect and serve one another" so they might provide "for the spiritual, and not only the material, aspects of their members' lives." He notes that guilds could also be lawmaking bodies with their own authority (Berman 1983, pp. 390–91).<sup>5</sup>

Accordingly, there was often no sharp distinction between a religious body and an economic one. These aspects could be understood as intertwined—both could be described by terms such as *profession*, *calling*, or *vocation* (Marshall 1996).<sup>6</sup> While this sense of meaning has been weakened in the modern era, aspects of it remain. There is still often a formal commitment, including ethical standards, required upon entry into professions such as medicine and law, which also maintain their own governing bodies, rules, and standards, and which have the authority to take disciplinary action. Trade unions have exercised some similar functions, and many still describe themselves as "brotherhoods," such as the International Brotherhood of Electrical Workers and the International Brotherhood of Teamsters.

More strictly, commercial corporations have also been granted extensive rights, frequently too much so. Some, such as the British East India company, the Vereenigde Oost-Indische Compagnie, or the Xinjiang Production and Construction Corps, have exercised governmental, including military, powers and often have done so brutally.<sup>7</sup> Thankfully, the rights of commercial bodies have now usually been trimmed to better fit their purpose and organization, but they still maintain a range of rights.

So, legal rights have been long held by institutions and organizations, and there is a growing emphasis on this in the U.S. and elsewhere (Schwartzman et al. 2016; Muñis-Fraticelli 2014).

#### **4. Rights and Collective Bodies**

There has recently been a stress on the notion of "group rights," a notion ably defended by William Kymlicka and others. He argues that certain rights are related to social practices, cultural meanings, and a shared language and that these are "owed to people as members of a particular community, rather than universal rights owed to all people as human beings" (Kymlicka 2000, p. 206; Kymlicka 1994, pp. 17–33). However, given his and others' focus on indigenous and language communities, the language of "group rights" can be misleading. He is arguing less that an organized group itself bears rights *as an organization* and more that its members may properly have moral and legal rights different from those of nonmembers. In this sense, he is arguing principally for differential rights held by people, rather than for organizational or institutional rights per se.<sup>8</sup>

Not all collective bodies can bear institutional rights. As Kymlicka argues, people with different characteristics may properly have some different rights. Indigenous tribes may have different hunting and fishing rights different from those who do not come from a tribal background on the grounds that this reflects longstanding traditional rules and customs, perhaps analogous to common law. Such rights, moreover, may be central to indigenous lives and livelihood in ways that they are not for others. There may also be differing language rights, as in Canada, where not only French and English but also traditional indigenous languages are granted legal status in certain regions of the country.<sup>9</sup>

However, while these rights pertain to particular sets of people, or members of a people group, rather than to all people residing in a particular state or area, they still remain individual or personal rights. They are differentiated according to specific, shared characteristics and are not rights held by collective entities as such.<sup>10</sup> One exception to this can be the situation of indigenous peoples who have not only shared social practices, cultural meanings, and language but many of whom live in organized entities that have their own legal structure, such as the Navajo Nation or the Seneca Nation of Indians. These are institutional rights-bearing entities and have legal jurisdictions.

Institutional rights can only be held by bodies actually capable of exercising rights and duties. For instance, Francophones, or red-headed persons, or left-handed people do not have institutional rights. Such classes of people have no collective legal personality.<sup>11</sup> However, an organized body such as a tribe, mosque, university, or a flower shop can have rights. These organized bodies can receive a bill or write a check; they can bring a lawsuit or be sued; they can buy and sell property. In short, they have legal personality (Muñis-Fraticelli 2014, pp. 195–96). My late professor, Bernard Zylstra, suggested a shorthand guide to determining whether a collective body has legal personality, observing that it depends on whether you can you write a letter to or phone it, or it to you. It is possible to phone or write to representatives of the Navajo Nation, but not to Native Americans as such. If such an organized structure is not present then the body is not an institution and does not have legal agency or personhood.<sup>12</sup> This recalls the famous statement widely, though falsely, attributed to Henry Kissinger: "Who do I call if I want to speak to Europe?" implying that the EU was not, in foreign affairs at least, an organized entity (Rachman 2009).
