“Group Rights in Comparative Constitutional Law: Culture, Economics, or Political Power?” in M. Rosenfeld & A. Sajo, eds., Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012) 1100-1123.
Group rights are part of the grammar of contemporary constitutional politics.Moreover, the assertion of group rights is not just a political claim; it is also a legal claim directed at the very design of the constitutional order itself and its subsequent interpretation. In contemporary constitutional practice, group rights exist alongside the standard schedule of individual rights that are found in constitutional bills of rights. One of the most pressing issues of contemporary constitutional law is to understand the precise interrelationship between group and individual rights, because they embody conflicting constitutional logics. Yet the most serious work on this question is found not in the literature on comparative constitutional law, but in the cognate discipline of political theory. Constitutional scholarship, in turn, is parasitic on political theory. Political theorists presuppose that group rights entail the right to self-government over matters integral to cultural identity. But on careful examination, there is a gap between the constitutional image of group rights relied on by many political theorists and the actual constitutional provisions that can lay claim to constituting group rights. Group rights often arise out of conflicts over economic and political power that may bear little connection to questions of cultural difference, or whose relationship to culture is more complex that political theorists would suggest. Normative theorizing and constitutional analyses about group rights and therefore premised on inaccurate foundations. This chapter sketches an alternative picture of group rights and the political sociology that underlies them. This kind of descriptive and analytical work yields not only a different picture of group rights, but reframes the precise character of the conflict between individual and group rights, which is the precursor to normative analysis.