Group Rights to Compensation

Theory and Practice

John Edwards
Abstract
Debate about group rights usually focuses on cultural rights, rights to autonomy, and
rights to self-governance. Rights to group compensation for past harm are less often
considered even though they present more complex and difficult moral dilemmas
particularly when the groups concerned are racial, ethnic, or religious groups. Before we
can be satisfied that such groups have rights to compensation for harm qua groups rather
than as individuals we must look at the potential damage that group rights do to
individual rights, what we are compensating for, what is the appropriate form of
compensation, whether the compensation ought to re-establish the status quo ante or be
more symbolic, and who or what is the group for the purposes of establishing a justifiable
right. Such considerations must also include the moral difficulty of "time expiry" of
compensation for harm.
The policy practice of preferential treatment for racial and ethnic groups in the United
States provides a litmus test for these and other questions such as whether the
compensation should be for the original iniquity itself (slavery) or for the legacy of harm
it created. Preferential treatment benefits mainly African Americans and Latinos (or
Spanish speakers), but only in the case of the former can a prima facie case for
compensation be made. However, the form that it takes (preference in jobs, promotions,
and university admissions) raises serious questions about the damage to individual
rights.

1.

Introduction

The focus of this paper is one particular form of group rightsthe rights claimed by some
groups (qua groups) to compensation for harm and suffering. This form of group right poses
more moral and practical difficulties than most other types, such as rights to culture, governance,
or the presumed rights of particular groups such as gays, asylum seekers, or women, from which
compensatory rights must be distinguished.
Above all else, group rights to compensation highlight the sometimes intractable conflict
between group and individual rights. More so than in the cases of rights to self-governance or to
cultural preservation, the difficulties that group rights to compensation often present are those of
defending a group right as a genuinely distinct entity in the face of the damage it does to

John Edwards is Emeritus Professor of Human Rights at London University and Honorary Professorial Fellow at
Roehampton University.

John EdwardsGroup Rights to Compensation Theory and Practice

individual rights or its degeneration into the individual rights of members of the group.
Furthermore, though the two are not exclusively linked, consideration of group rights elicits
more clearly the dual nature of compensation and the problems this raises for implementing
compensatory practices. And these are not just theoretical matters because much that is
morally important hangs on the practicability of ever compensating defined groups for harm
done to them. The conflict between group and individual rights in large measure defines the
nature of group rights, but it is not the total of the problems attached to such rights.
Preferential treatment in the United States is used here as an exemplar of a group right because it
very well illustrates the complexities and contradictions that attach to claims to a group right for
compensation for past harm and because of the significant role it has played (and to a lesser
extent continues to play) in the racial and ethnic politics of that country.1
The paper is in two parts. The first examines the theoretical questions concerning group rights to
compensation. The second focuses on the use of preferential treatment in the USA as a means of
fulfilling group rights to compensation. The second part is not intended to be strictly illustrative
of the first but rather the two parts run in parallel and taken together provide two differing and
sometimes converging perspectives on compensatory group rights. The first part is largely
theoretical while the second illustrates some of the dilemmas, both theoretical and practical, that
arise when group compensation is put into practice. The article is discursive rather than
prescriptive.

2.
2.1

Group Rights to Compensation for Harm Compensation and Rights

The Language and Meaning of Compensation

We would normally think that if an individual had suffered harm (intentional or as a result of
negligence) then they ought in some way to be compensated. We would expect that whenever
possible, the costs of that compensation should fall on the harm-doer and that if this cannot be
effected, then compensation should be paid for by a third party such as a public compensation
board.
When this general principle is applied to groups, it can lead, in the case of some types of
compensation, to both moral and practical difficulties. An analysis of these will constitute part of
this paper. However, we need first to consider the question of compensation itself, particularly as
it relates to groups.
To say that harm ought to be compensated for is axiomatic but unrevealing. In order to
compensate, we need to know why we ought to do so and what needs to be done in order to
effect it. It may be seen as self-evident that agent-related harm should be put right in some way
but the putting right may rest on a number of grounds. For example, is compensation a matter
of justice and does justice require that compensation should constitute restitution?2 What would
1

The terms preference policy or preferential treatment are favoured here over the more commonly used affirmative
action because the former more particularly describe policies and practices which override individual merit in
pursuit of group compensation, whereas the latter lacks this precision and can refer to practices that contain no
element of preference and are better described as giving a helping hand. See K. Appiah and A. Gutmann, Color
Conscious : The Political Morality of Race (Princeton NJ : Princeton University Press, 1996).
2
R. Nozick, Anarchy, State and Utopia (Oxford: Blackwell, 1974), pp 149-160.
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restitution to the status quo ante require? Does justice demand compensation as a matter of
rights and do such rights rest on desert? In other words, do victims of harm deserve
compensation for harm done to them? In order to avoid an infinite regression of questions of
justifications for compensation, we can reasonably argue for present purposes that justice
demands compensation to the victims of harm both because they deserve it and because this
desert gives them a right to it (though in matters other than compensation we would not make
rights dependant on desertor on anything else other than being human). A harm that remains
uncompensated is an injustice that demands correction. Casuistic though this may appear, it has
to be better than the alternative that harms can go uncorrected because of the want of a
foundational reason for compensation.
Barrow also raises the interesting case of atonement.3 Compensation may be seen as an
instrument of atonement for harms and injuries we have perpetrated, but it cannot be the whole
of atonement. It is not enough, therefore, that we compensate or recompense, Native Americans
or African Americans for near-genocidal policies or the effects of institutional slavery. We must
also recognise and admit our wrongdoing and guilt (collectively speaking). On the principle that
confession (or at least admission) is good for the soul, we shall then be better able to see where
our duties lie in respect of those we have injured. This is the stance from which Clarence
Munford writes in his book Race and Reparations, and although he does not refer directly to
atonement, the tenor is that white people need to abase themselves for what they have done to
Blacks.4 Some liberal Whites agree that, broadly speaking, white people bear a burden of guilt
for the historical wrongs done to Blacks. However, as Barrow notes, atonement is not at all the
same as compensation or action motivated by guilt. Atonement is something due to ones God,
not to ones victims. However, atonement does imply recognition of guilt and may be
accompanied by some symbolic gesture of compensation on the part of the perpetrator of harm
but this is unlikely to be feasible when (if) the harm-doer is the whole category White
Americans. Again, the United Nations Basic Principles and Guidelines on the Right to a
Remedy and Reparations for Victims of Gross Violations of International Human Rights Law
and Serious Violations of International Humanitarian Law refers to reparation as that which
should render justice by removing or redressing the consequences of (the) wrongful acts.
Reparations shall be proportionate to the gravity of the violations and the resulting damage, and
shall include restitution, compensation, rehabilitation, satisfaction and guarantees of nonrepetition.5 These terms are further elaborated in legal form in the Principles and Guidelines but
in a way that might leave a human rights philosopher not entirely satisfied.

2.2

The Language of Compensation in Preferential Treatment Theory and

Practice

Because preferential treatment will be the subject of the second half of this paper we will
complement the above considerations of the meanings of compensation with a review of its
meanings and language in preference policy. This requires, in turn, a brief preview of what is
meant by preferential treatment. For the purposes of this article, preferential treatment consists of
those policies and practices that have been in use in the United States for more than forty years
for the purposes of compensating mainly African Americans for the harm of slavery and its
3

R. Barrow, Injustice, Inequality and Ethics (Brighton: Wheatsheaf, 1982) p.80 et sec.
C. Munford, Race and Reparations: A Black Perspective for the 21st Century (Trenton, NJ: Africa World Press Inc,
1996). For Munford, the harming group would be all Americans other than Blacks.
5
U.N. Doc. A/Res/60/147; General Assembly Resolution, Principles 1823, para.7.
4

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John EdwardsGroup Rights to Compensation Theory and Practice

consequences. It consists in giving preference in jobs and university admissions to Blacks by

allowing appointment or admission with lower qualifications than are required for Whites. It has
always been a controversial practice and its constitutionality has often been tested by the
Supreme Court.
It should be noted that the term affirmative action is often used to include preferential
treatment but the two must be clearly distinguished. Affirmative action is more akin to giving a
helping hand such as providing extra school classes for Black children, ensuring that equal
opportunity policies are pursued, or using role models for Black male children. None of these
entail direct costs to Whites which is the distinguishing feature of preference. For every Black
applicant who gains a university place by preference however, there is a White candidate with
better qualifications who is rejected. Our concern here is solely with preference policies.
Affirmative action is morally anodyne whereas preferential treatment is morally problematic. It
is therefore erroneous that members of the Supreme Court have traditionally and systematically
referred to preference cases before them in terms of affirmative action. There would be no
reason for cases to draw judicial attention if they were solely about affirmative action (and they
do not). For the Supreme Court to call preferential treatment affirmative action even when the
cases before them can manifestly only be the former is perhaps a matter of not wanting to be
seen as pre-empting judgement by using morally charged language.
The language of compensation in respect of preferential treatment tends to be less than
enlightening. Title VI of the Civil Rights Act of 1964 required recipients of federal funding
under the Act to take affirmative action (viz preference practice) to overcome the effects of prior
discrimination (emphasis added).6 The United States Supreme Court has referred on various
occasions to [affirmative action as] warranted to remedy the present class-wide effects of past
discrimination7 (Justice Blackmun in Firefighters Local 1785 v Stotts, 467 US 561 (1984); a
public employer . may undertake an affirmative action program which is designed to further a
legitimate remedial purpose 8 (Justice OConnor in Wygant v Jackson Board of Education);
race conscious relief (is) justified by a compelling government interest in eliminating the
systematic and discriminatory exclusion of blacks9 (Justice Rehnquist in United States v
Paradise). Furthermore, commentators on preference policy have added to the brew such as
when Fullinwider refers to compensation as making good the victims loss10 and Chemerinsky
sees affirmative action as a means of remedying past discrimination.11
If words mean anything (which is not always the case in the rhetoric of race), then among the
epithets restitution, rehabilitation, overcoming the effects, making good, remedying, or
eliminating, we see a variety of meanings of compensation which are far from identical and
which probably in practice dictate different forms of policy response. Furthermore, although
restitution can in theory be pinned down more precisely, the same cannot be said for making
good, remedying, rehabilitation, or overcoming. As policy prescriptors they leave the
meaning and requirements of compensation obscure. Clearly, legislators, judges, practitioners,
6

United States Code of Federal Regulations: 34 CFR sec.100.3(6) ( i ).

Firefighters Local 1785 v. Stotts 467 US 561 (1984).
8
Wygant v. Jackson Board of Education 476 US 106 (1986).
9
United States v. Paradise 480 US 149 (1987).
10
R.K. Fullinwider, Reverse Discrimination and Equal Opportunity in J.P.DeMarco and R.M. Fox (ed.), New
Directions in Ethics: The Challenge of Applied Ethics (London: Routledge, 1986), p.178.
11
E. Chemerinsky, Making Sense of the Affirmative Action Debate in J. Higham (ed.), Civil Rights and Social
Wrongs (Pennsylvania: Pennsylvania State University Press, 1997), p.88.
7

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John EdwardsGroup Rights to Compensation Theory and Practice

and commentators have all been less than consistent in their use of language about
compensation.

2.3

The Two Components of Compensation

We can distil from the above two general forms which the idea of compensation might take. The
first is that where manifest harm has been done, recognition of this by the harm-doers should be
accompanied by some form of recompense, if only in token but not necessarily ungenerous form.
The compensation would be symbolic. The second form of compensation would acknowledge
that things ought to be reinstated to the situation that would now hold had the harm not occurred.
Compensation as restitution appears to carry a stronger moral weight. Harm ought to be
corrected and the victims ought not to suffer any immediate or longer term detriment. Their
desert is no less than being as they would have been had the harm not taken place.12
If only for practical reasons, the first type of compensation is more common than the second.13
There will be many cases where restitution is impossible in any literal sense (where, for
example, the harm includes physical injury or lasting psychological damage) and compensation
will necessarily be symbolic or in substitution for the ideal of putting things back (or forward)
to what they would have been. In light of this, we must ask whether the same moral principles
of compensation apply to both individuals and groups. Should our search for the proper form of
compensationwhether symbolic (substitutional) or rectificatory be any less rigorous for groups
than it is for individuals?14 The practice and theory of preferential treatment presents many
problems of kinds that worry such considerations of the pursuit of the right kind of
compensation and as such present a valuable test-bed for analysis of group rights to
compensation.
The two components of compensation sketched here can be filled out in more detail. First, as we
have noted, intentional injury to a person (or a group) deserves to be acknowledged and some
sort of recompense paid for that injury. This is compensation for the original harm. Second,
there is the matter of the legacy of that original harm. There will be circumstances when harm
results in no detrimental legacy but in the paradigm cases we are concerned with here, the
original harm (slavery, intended genocide) has left an inheritance of disadvantage.15 The
negative consequences of the original harm remain to manifest in a range of deprivations and
disadvantages relative both to the majority population and other minority groups and it is to
compensate for these disadvantages that preference policy has its main purpose.16 But this is a
different form of compensationit is making good, or a weak rectification as opposed to an
expiatory response for the original harm. This is an important distinction but one rarely
acknowledged in the literature of compensation.

12

Nozick, Anarchy, State and Utopia, pp.149-160. See fn.2.

G. Sher, Ancient Wrongs and Modern Rights (1981) Philosophy and Public Affairs 10 (1) pp. 3-17
14
J. Edwards, Group Rights v Individual Rights: The Case of Race-Conscious Policies (1994) Journal of Social
Policy 23 (1) pp.55-70, see in particular pp.59-61.
15
Though it must be remarked that not everyone would accept a causal link between original harm and current
disadvantage in respect of Black Americans or Native Americans (see N. Capaldi, Affirmative Action: Con in A.
Mosley and N. Capaldi, Affirmative Action (London: Rowman and Littlefield, 1996), pp. 97-105.
16
A more extended treatment of group harm is to be found in T. Simon, Group Harm (1985) Journal of Social
Philosophy 26(3), pp.123-37.
13

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2.4

Groups and Rights: The Moral Status of Groups

Almost all the literature on group rights is concerned with rights to cultural protection, group
identity, and self-governance.17 There is very little to turn to in the matter of group rights to
compensation.18 What distinguishes our concern from the body of group rights literature,
therefore, is the notion of compensation as the subject of a group right as opposed to cultural
protection and self-governance. In consequence of this, however, and given the historical nature
of the harms done, we need to look again at the nature of the groups that concern us.
The almost exclusive emphasis on self-governance and cultural protection has been the result of
the circumstances and context within which commentators have worked. In short, their job has
been facilitated by observing current events and well defined and delineated groups for which
cultural survival and perhaps self-governance are at least within the realm of the possible. In
such circumstances, the relevant groups are self-defining, save for some questions of inclusion or
exclusion at the margins.
There are, nonetheless, some theoretical considerations concerning the nature of groups for the
purposes of establishing rights to self-governance and cultural preservation that at least cast
some light on what needs to be said about the specifications of groups for the purposes of
compensation. We may begin by asking what kind of group can hold a right qua group, or, in an
alternative formulation, what sorts of things to which a right might be claimed will generate a
possible group right to those things? Clearly, groups defined by race, ethnicity, or religion per se
cannot be the holders of rights if only because they have no moral standing in themselves. How
then might such groups attain moral standing and hence become legitimate holders of rights to
self-governance and cultural preservation on the one hand and compensation on the other? Two
possibilities present themselves. One supposes that moral standing attaches to the good, or the
interest being claimed as a good, that is, a particular feature of the claim such that having a right
to it inheres in the subject of the claim itself.19 The other would suggest that circumstances prior
to the rights claim (and possibly independent of it) can establish moral standing. Thus French
and van Dyke20 argue that the group must have some identity qua group and a degree of unity in
such characteristics as culture, though whether identity or unity also require distinct locational
boundaries is less clear. Another requirement for a group to have moral standing would be its
continuous existence independent of its particular membership.21 Thus, in the case of an ethnic
group, its group identity is indifferent to the births, deaths, immigration, or emigration of its
individual members. Fourth, Gallenkamp argues that a degree of subjective membership among
individual membersa sense of belongingnessis also a prerequisite for the moral standing of

17

This literature is now voluminous and extends into the area of third generation rights on which we comment
briefly in subsequent paragraphs. A significant contribution to the literature can be found in I. Shapiro and W.
Kymlicka (ed.), Ethnicity and Group Rights, Nomos XXXIX (New York: New York University Press, 1997).
18
But see M. Hartney, Some Confusions Concerning Collective Rights in W. Kymlicka (ed.) The Rights of
Minority Cultures (Oxford: Oxford University Press, 1995), pp.202-227.
19
Indeed, in the terms of Razs interest theory of rights, it is the common possession of an interest important to the
wellbeing of the interest holders that defines the group and establishes its right. Other group-defining characteristics
such as ethnicity would be otiose; J. Raz, The Morality of Freedom (Oxford: Clarendon, 1986).
20
P. A. French, Collective and Corporate Responsibility (New York: Columbia University Press, 1984). V. van
Dyke, Justice as Fairness: For Groups? (1977) American Political Science Review, 69, pp.607-614.
21
D. Newman, Collective Interests and Collective Rights (2004) American Journal of Jurisprudence, 49, pp. 12764.
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the group. This requires that the group has the characteristics of a constitutive community or a
Gemeinschafta group bound by bonds of solidarity.22
We can therefore tentatively identify unity, subjectivity, continuous existence, and identity as
(overlapping) qualities that a group must have in order to establish at least prima facie moral
standing and hence the possibility of holding rights. However, these appear only to be
prerequisites of moral standing. Certainly together they identify a particular class of group (we
may call them after Gallenkamp, constitutive communities), but what is it about groups so
defined that gives them even a priori moral standing and hence the potential to hold rights and
establish duties upon others?23
One response to this suggestion is that groups so constituted (or defined) have the same moral
standing as individuals and can have the same rights-holding capacity as individuals, but this in
itself remains problematic. It has been argued that having moral standing requires that the
subject has agencyis able to choose and think morally24 a quality that individuals possess, but
not groups.25 If we are to keep the avenues of argument clear, it is then necessary that we
distinguish, if only for present usage, between moral standing and moral agency.26 Thus far
we have assumed that groups with certain characteristicsunity, subjectivity, continuous
existence, and identitymight qualify as having moral standing, that is potential possessors of
rights. The idea of moral agency as derived analogously with individual autonomy or agency
appears to confuse the picture, but may in fact turn out to be a red herring. Thus, we would
conventionally argue that individuals are all possessors of (human) rights in virtue of common
characteristics such as dignity, human worth, and so on;27 they all have the same rights; and they
can all, in theory, seek remedy for rights violated from specifiable duty holders. Little of this is
true of group or collective rights. Groups are not seen as pre-existing moral collectivities; they
are only given moral status because they lay claim to certain goods like governmental autonomy
and an indigenous culture which are important for group identity and partly definitional of the
group as well as being articles of human rights doctrine.28 The groups have become defined in
terms of the limited rights they claim. Such groups cannot be said to have a set of rights common
to all (although in cases like group oppression it can be said that all groups do enjoy the same
rights of remedy).29 Indeed, what other rights do they have as rights-holding groups (other than

22

M. Gallenkamp, Individualism versus Collectivism. The Concept of Collective Rights (Rotterdam: Erasmus
Universiteit Rotterdam, 1998).
23
There is a major (and possibly fatal) qualification to these attempts to establish moral standing, however. This is
the question of ever being able to establish moral capacity from empirical data. Group rights to self governance and
cultural preservation can escape the strictures of the naturalistic fallacy because the groups are (virtually) predefined but identifying groups and establishing their moral standing for compensation is more normatively risky.
This is a matter to be debated elsewhere however but see T. Pogge, Group Rights and Ethnicity in I. Shapiro and
W. Kymlicka (ed.) Ethnicity and Group Rights (New York: New York University Press, 1997), pp.187-221 and V.
Haksar, Collective Rights and the Value of Groups (1998) Inquiry 41(1), pp. 21-43.
24
Gallenkamp, Individualism versus Collectivism. The Concept of Collective Rights. See fn.22 and H.L.A. Hart,
Are There Any Natural Rights? (1955) Philosophical Review 64, pp. 175-91.
25
D. Copp, What Collectives Are: Agency, Individualism and Legal Theory (1984) Dialogue 23, pp.249-270 and
E. Wall, The Problem of Group Agency (2000) Philosophical Forum 31(2), pp. 187-197.
26
See for example J. Nickel, Group Agency and Group Rights in I. Shapiro and W. Kymlicka (ed.) Ethnicity and
Group Rights Nomos XXXIX (New York: New York University Press, 1997).
27
United Nations, Universal Declaration of Human Rights. General Assembly Resolution 217A (iii), GAOR, 3rd
session, Preamble and Article 1.
28
A. Freeman, Are There Collective Human Rights? (1995) Political Studies 43(1), pp.25-40.
29
But again, this is normally confined to certain types of groups (ethnic, religious, and racial groups).
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autonomy and culture) that would give them some equivalence to individuals?30 All of which
leads us to the question of interests and whether, as Raz suggests, they can, given certain
caveats, be the foundation of a collective right irrespective of other common features among the
group. From this we shall proceed to a re-consideration of compensation and groups.
Raz puts interests at the centre of a conception of rights. It is a formulation that facilitates the
idea of collective rights since it is assumed that collectivities of people can have common
interests in the same way that individuals can. Indeed, the distinguishing feature of Razs interest
theory of rights is that a group or collectivity can be defined by the common interests of its
members31 without any prior common feature such as ethnicity or race. It may appear less than
compelling that interests per se can generate rights or rather, it would seem interests unfulfilled
or thwarted can generate rights except that for Raz the interest must be suchor of such an
importance to the individual or groupas to ground a duty in others to fulfil. Hence, there is a
degree of circularity in defining an interest (it can only be an interest that imposes a duty on
others and since duties and rights must in large measure be co-relative, the establishment of
duties must confer rights on someone) but with little by way of external referrant to indicate how
important an interest has to be before it founds a duty.
Thus, according to Raz, a number of people may have a right (a collective right) if they have an
interest in common which is important for their well-being and in consequence of which grounds
a duty in others. Their interest is in a collective good from which individual members can also
benefit, but for which each individuals interest separately is insufficient to ground the duty.
Self-governance and cultural identity seem to fit this description of collective rights;
compensation for harm probably less so, but it should be noted that in respect of all of these, the
collectivity already exists in an identifiable form (a minority group) independently of any
interests they have. What is more testing is Razs idea that groups can have collective rights
solely in virtue of an important interest held in common. Collective rights defined only by
common interests appear to make a hostage to fortune both because of the nature of the interest
and what constitutes its importance. If a group has a collective right only in virtue of a
common interest in the absence of which they would be a disparate set of individuals with no
connections between them, it would suggest that the common interest they have is one for which
we would already consider an identifiable right to be the proper instrument for correction. A
group of people who have nothing in common other than living in proximity to a nuclear power
station do become a temporary collectivity with particular rights if the power plant leaks toxic
gas over their homes. They have a collective right to compensation (or whatever) simply in
virtue of an important interest they have in their well-being, but only for as long as the threat to
that interest remains. But what of financiers on Wall Street who have nothing in common apart
from their occupation? They do have a common and important interest in maintaining the
standard of their institutions (and their personal well-being) to which end they benefit from a
degree of inter-bank co-operation and hence community. If such interests generate a right which
in turn grounds a duty in others to fulfil,32 it is not a duty that many would recognise or adopt.
The first of these is what we might call a victim group, while the second is a pro-active group
and no different from other groups wishing to protect their cultures. The first group has an
identity defined solely by a common interest, as does the second, but we are used to thinking of
culture-protecting groups as having an independent identifier in the form of ethnicity, race, or
30

It would of course be possible to claim that they had many of the rights that individuals do (to food, education,
health care and so on) but this would simply be a play on words.
31
Raz, The Morality of Freedom. See fn.19.
32
Leaving aside consequential arguments that bankers and financiers are good for the economy.
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religion. And of the (now) three groups, only the third can be said to fulfil the four criteria of
identity, continuous existence, unity, and subjective belonging. We therefore have a victim
group with no identity other than their common interest, a group with a common cultural interest
but no other identity, and a group with a common cultural interest and another identity
(ethnicity), but not one that in itself has any moral status. And all three, in Razian terms, possess
their own common interests which could found a right. How might we resolve these
inconsistencies?
There are a number of avenues of approach. First, the distinction made between moral agency
and moral standing helps to clarify some of the difficulties that arise in using individual
autonomy and rights as a template for group rights and group autonomy. It enables us to claim
with more equanimity than before that groups do not have moral agencyan argument that at
best struggles to find a footing. What we can say is that some groups in some circumstances can
have moral standing in respect of some rights claims they have. They do not need moral agency
in order to claim some rights either because of, as we have noted above, the nature of the right
itself or perhaps because the group can be characterised by the four criteria we have previously
identified. Groups do not need agency to have rights to compensation if they are victims of
harm. Their qualification for a right to compensation will rest upon the subject of the right
itself, i.e. that the costs of harm should not be left to lie where they fall and that as well as
specific references to compensation or remedy in human rights declarations and covenants, the
assumption behind much human rights culture is that violated rights are due compensation (else
why have them?). The qualification for a right to self-governance or cultural preservation again
appears to lie both in their inclusion in Article 1.1 common to both ICESCR and ICCPR (selfdetermination)33 and the ICCPR Article 27 (enjoyment of own culture)34 and in their
importance for group identity.
We need to ask next whether the claimed rights to compensation, self-governance, and cultural
preservation rest solely on their own merits and their place in human rights documents, or
whether the moral standing of the groups involvedand hence their rights-claiming abilities
also rests prima facie on the characteristics we have identified. In the case of interest-only
defined groups, it is clear that these characteristics are absent; the victims of a toxic gas leak
have only their harm in common. Ethnic groups, on the other hand, that claim a right to
compensation for past harm or for self-governance, seem to be of a very different kind from
compensation groups simpliciter. To varying degrees we can say that some ethnic or racial
groups display the elements of unity, identity, continuous membership, and subjective
belongingness which we have tentatively identified as provisional qualifiers for moral standing.
Can groups that do not have these four characteristics (and perhaps others we have not
identified) have moral standing and prima facie group rights? Clearly, if we accept Razs
conception of interest-defined groups having rights, then moral standing based on group
characteristics not defined by interests is not necessary. However, in the present context of trying
to make sense of group rights and in particular of the policy of preferential treatment as a means
of fulfilling a right to compensation for past harm, Razs interest-based theory of rights appears
to be, if anything, a diversion. This is not to say that it does not have considerable value
elsewhere, but if rights-holding is defined by interests (and as Raz would have it, the interests of
those who have an interest in the interests of others being satisfied) then it appears that such
rights occupy a different domain from what we habitually call human rights or at least they
recognise no distinction between human and any other sorts of right and our specification of
33
34

United Nations, International Covenant on Economic, Social and Cultural Rights 993 UNTS 3 (1966).
United Nations, International Covenant on Civil and Political Rights 999 UNTS 171 (1966).
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what sorts of thing rights-holders are.35 What we think of as human rights are to a greateror
lesserdegree catalogued and agreed upon. Rights holders include individuals and collectivities
of individuals that in the latter case have moral standing in virtue (or so we speculate) of a set of
characteristics (our four criteria) which give them such human rights as are specified or may be
interpreted as applicable in human rights canon. Whether, to answer our preceding question,
groups that do not have these four characteristics or at least similar ones, can have moral
standing, the speculative response must be a probably not. To put it simply, to have moral
standing a group must have some gel that will give it a long-term identity. Groups
characterised by these four qualities then will have prima facie moral standing to exercise group
rights which become a posse ad esse when attached to particular rights. We shall consider what
rights these are next.
Whatever rights groups have will be determined by their moral standing and the subject of the
rights themselves. It will assist in our consideration of group rights to compensation therefore if
we can locate them in the context of all those rights that groups with moral standing have and for
this we return to the two International Covenants. Excluding assertions that groups have all the
rights that individuals have that are logically possible for them to have (a position that is
untenable), we find that the only rights that groups can indubitably hold are the rights to selfdetermination and to cultural preservation including appropriate education provision and
religious adherence. The rights not to be discriminated against and not to be the subject of hatred
may also apply, though they are couched in terms of the individual. And compensation, as we
have noted, appears to underwrite much of the content of the Covenants but the only specific
reference to remedy (ICCPR Article 2.3.a)36 is again clearly couched in terms of individuals.
Therefore, in the absence of any direct reference to compensation for groups in either of the
Covenants, it has to be said that self-determination and cultural preservation are the only
indubitable rights that groups with moral standing have.37 Nevertheless, the idea of
compensation is too deeply rooted as an underlying feature of human rights doctrine that a right
to it for harm done must be something that groups with moral standing possess even though,
unlike the other two group rights, it also has an individual domain.
To summarise the above arguments, we can at least tentatively claim that group rights to
compensation can be established on the basis of the characteristics of the group (unity,
subjectivity, continuous existence, and identity) which can establish prima facie moral standing,
combined with the significance of the right being claimed (in this case compensation which
underpins much of human rights doctrine). What has not yet been fully tested is the question of
the two types of compensation identified earlier. This is a matter that may now be further
examined in the context of the practicalities of putting compensation into effect in the form of
preferential treatment to which we turn in Part 3.

3.

Group Rights to Compensation: The Case of Preferential Treatment in the

35

There will be cases (possibly many cases) in which the interest that defines a group is to possess a human right
that has been violated. But this seems incidental to Razs argument.
36
United Nations (1966), International Covenant on Civil and Political Rights, 999 UNTS 171
37
Third generation rights have extended group rights to include peace, a healthy environment, and a number of
basic needs such as health, housing, and education. These are more akin to strategic or tactical, not grounded,
rights. For critiques of third generation rights see A. Freeman, Human Rights (London: Polity, 2002), pp.48-54 and
chap.8 and J. Donnelly, Universal Human Rights in Theory and Practice (Ithaca: Cornell University Press, 1989),
see in particular chap.11.
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John EdwardsGroup Rights to Compensation Theory and Practice

United States
3.1

The Nature of Preferential Practice

Preferential treatment in the US is neither the product of clear policy analysis nor has it derived
from a process of problem specification leading to prescriptive outcome. Its history has been
fitful and controversial, punctuated by marginal and unconvincing decisions by the Supreme
Court. It had its origins in the civil rights movement,38 with the desire to create a more level
playing field for African Americans under the legal and regulatory instruments of the Civil
Rights Act 1964 (particularly Title VII of that Act)39 and President Johnsons Executive Orders
11244 and 11375.40 The first major Title VII case to come before the Supreme Court was Griggs
v Duke Power 197141 in which the Court decided unanimously that discrimination might not
only be signalled by intent but also by consequence. Employers, for example, might be found
guilty of discrimination even in the absence of an intention to do so if their hiring practices were
such as to produce a racial imbalance in the workforce that was not reasonably explicable. The
significance of this finding (which became known as the Griggs Doctrine) for the future course
of race policy has often not been recognised for what it was.42
No one really knows when or where the practice of using race as a factor in hiring or university
admissions began. It had almost certainly existed informally alongside (and often
indistinguishable from) affirmative action during the 1970s (and probably prior to Griggs) but
faced its first test before the Supreme Court in 1978 in Regents of the University of California vs
Bakke.43 From then through to 2003 and 2009, when the most recent cases came before it,44 the
Supreme Court has wrestled (often with 5 to 4 split decisions) with the moral and sometimes
political intricacies of preferential treatment, but it was Bakke that focussed on what was to
become the most substantial underlying concernthe challenge that a group right might make to
the individual right of equal protection before the laws. It was inevitable that the Supreme Court
would look to the 14th Amendment as the constitutional foundation against which to test
preferential treatment but the conflict between group rights and individual rights came to be the

38

J. Higham, Introduction: A Historical Perspective in J. Higham (ed.) Civil Rights and Social Wrongs
(Pennsylvania: Pennsylvania State University Press 1995), pp.3-30, L. Bobo, The Color Line, the Dilemma, and the
Dream: Race Relations in America at the Close of the Twentieth Century in J. Higham (ed.) Civil Rights and Social
Wrongs (Pennsylvania: Pennsylvania State University Press, 1997), pp.31-55 and P.Moreno, From Direct Action to
Affirmative Action (Louisiana State University Press, 1997), see in particular chaps. 2 and 3.
39
United States: Civil Rights Act 1964: 42 USC 2000.
40
United States: Presidential Executive Orders 1124 and 11375 (1965).
41
Griggs v Duke Power 401 US 424 (1971).
42
R. Belton, Discrimination and Affirmative Action: An Analysis of Competing Theories of Equality and
Weber (1981) North Carolina Law Review 59 (1), pp.531-598.
43
N. Pedriana, The Historical Foundations of Affirmative Action 1961-1971 in K. Leicht (ed.) The Future of
Affirmative Action (Stamford: JAI Press, 1999), pp.3-32.
44
In 2003 the Supreme Court decided two cases involving student admission procedures at the University of
Michigan. In Grutter v Bollinger 539 US 306 (2003) the Court upheld by 5-4 the affirmative action admissions
system at Michigan. It did so by using Bakke as precedent. Grutter was heard in conjunction with Gratz v
Bollinger 539 US 244 (2003) in which the Court ruled 6-3 that Michigans admissions system was too bureaucratic
and mechanical and therefore violated the Equal Protection Clause of the 14th Amendment. In its most recent
(2009) case the Court held 5-4 that white firefighters in New Haven, Connecticut had been unfairly denied
promotions when New Haven discarded the results of promotion tests because they excluded too many minority
candidates. The court ruled that New Haven had violated Title VII of the Civil Rights Act (Ricci v deStefano No.
07-1428 (2009).
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John EdwardsGroup Rights to Compensation Theory and Practice

fundamental problem that the practice has faced ever since. It is the reason why preference
policy presents a valuable diagnostic in the debate between individual and group rights.
What characterises preferential treatment is its use of race, ethnicity, or religion partially to
substitute for merit or desert in appointing to jobs or in university admissions, or in awarding
contracts. Merit attaches to individuals (or in the case of contracts, to bids that are judged on
specified criteria); race, ethnicity, or religion are group characteristics. Merit measures an
individuals suitability for a job or position; a persons racial attribution is based on a group
characteristic and cannot, so the argument goes, be a measure of suitability except in relatively
rare circumstances. 45
Preference practice takes a variety of forms but in essence, it is a means of taking account of race
as one factor among others in awarding jobs and places. It may use a quota system by which a
proportion of places or positions are set aside for minorities. More usually it will entail accepting
minority persons at the margins of qualification instead of majority candidates who are qualified.
The overall purpose is to increase the numbers of minority persons in an employment or in
universities. Race counts as an element of qualification because absent the disadvantage of race,
applicants would be qualified on normal merit criteria. Minorities are being compensated in a
general sense for the detriment they have suffered and this works out at the individual level in a
tacit compensatory supplement to their merit status. The fact that group compensation plays out
as individual benefit of course constitutes one of the moral difficulties of group rights to
compensation.46

3.2

The Two Conceptions of Compensation

We have noted in Part A the need to distinguish between two conceptions (or components) of
compensationcompensation for original harm and compensation for the detrimental legacy of
that harm. The importance of this distinction emerges starkly in the practice of preferential
treatment.47 It also reveals some important inconsistencies in US practice. Preferential treatment
primarily benefits African Americans and Latinos (Spanish speakers). Of the two, African
Americans clearly qualify (within the narrow context of preference policy) on grounds of both
original harm and a legacy of detriment. Hispanic Americans, on the other hand, whilst being a
relatively deprived group in the US, cannot be said to have suffered any great original harm
there. Contrariwise, both the Jewish and Chinese populations did suffer discrimination and
oppression in the US but have not been left with any legacy of disadvantage though this has been
contested in the case of the Chinese.48 In fact, both groups are now, on the whole, relatively well
off. They are not, in consequence, beneficiaries of preferential treatment and this raises the
question that if there is no legacy of detriment, does this absolve duty holders of the need to
compensate for the original harm? Therefore, if we consider that compensation must consist in
both compensation for the original harm and a deleterious legacy, then only African Americans
45

Jones outlines a new conception of group rights which he maintains does not entail giving a moral status to a
group qua group in the manner implied here. See P. Jones, Group Rights (2005) Stanford Encyclopedia of
Philosophy available at http://plato.stanford.edu/entries/rights-group/. Last accessed 19 February 2010.
46
A. Buchanan, Liberalism and Group Rights in J. Coleman and A. Buchanan (ed.), In Harms Way: Essays in
Honour of Joel Feinberg (Cambridge: Cambridge University Press, 1994).
47
F. Brennan, Reparations for Human Rights Violations in R. Smith and C. van den Anker (ed.), Human Rights
(London: Hodder Arnold, 2005), pp.312-315.
48
D. Woo, The Overrepresentation of Asian Americans: Red Herrings and Yellow Perils, in F. Pincus and H.
Ehrlich (ed.), Race and Ethnic Conflict (Boulder: Westview Press, 1994), pp.314-325.
89

John EdwardsGroup Rights to Compensation Theory and Practice

qualify for preferential treatment.49 Hispanics seem to be beneficiaries by default and Jewish and
Chinese are not deemed qualified because of an absence of a harmful legacy. (There is a fifth
group that must enter our subsequent discussion. Collectively it is called Native Americans but
in reality consists of several hundreds of different tribes or groups or nations. The history of
this group amply illustrates some of the moral dilemmas with which we are concerned.
However, because their numbers are relatively small and their dealings with white America have
led in such different directions such as the use of the reservations system, they have not featured
in policies of preference).50
These inconsistencies (and in particular that between Hispanics and African Americans as
common beneficiaries of preference practice) are a clear indication of the absence of any
coherent approach to the formulation and implementation of preferential treatment in America
and of a failure to provide preference practice with anything like a sound theoretical base.

3.3

Group Compensation in Practice: The Problems of Preference Policy

For preference policy to be justifiable, we must assume that it is whole groups that have been
harmed (all Blacks in respect of slavery andeven more extremeall Native Americans as a
result of near-genocidal practices in the 19th and 20th centuries)51 and the whole group, therefore,
has a right to compensation.
There are then two readings of the consequences that flow from this simple premise, one
principled, the other pragmatic. The first holds that the harm done was done to groups defined
with a very precise profile (slavery in the case of Blacks, genocide in the case of Native
Americans) and that the categories Black and Native Americans are definitive and
identifiable. The harms were (and are) highly specific in respect of their victims. It follows that
any compensation due now must be due to the entities that constitute these groups and not to
individual members. In other words, the harms are so closely identified with the defined groups
and their defining characteristics as a group that using group identity for compensatory purposes
would be morally coherent.52
That is the principled argument. The pragmatic argument acknowledges the possibility of
individual rights to compensation but maintains that if compensation is due to members of a
group even as a matter of individual rights, it cannot, for practical reasons, be paid to
individuals. The bureaucratic apparatus required would be hugely complex and expensive even
before a dollar had been paid out. Pragmatically, even if the compensation is to be paid to
honour historic individual rights, it must be paid to whole groups, of which the individuals are
members. Preferential treatment has then to be seen as a means of paying some compensation to
49

Native Americans certainly qualify on grounds of both harm and legacy but their numbers are small and they
seem not to have impacted to any degree either on debates or practice of preference.
50
See for example, R. Andrist, The Long Death: The last Days of the Plains Indians (London: Macmillan, 1993)
ch. 9; H. Sides, Blood and Thunder (London: Little Brown, 2007).
51
Not all of the 500 Nations were equally harmed, nor have the consequences been the same for all, but there
would be little to be gained by apportioning the suffering. See A. Josephy, 500 Nations (New York: Alfred Knopf,
1994).
52
J. Edwards, When Race Counts: The Morality of Racial Preference in Britain and America
(London: Routledge, 1995). A question arises, however, about whether, as a result of the passing
of time, groups retain the same identity for the purposes of compensation. We examine this
problem in a subsequent section.
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John EdwardsGroup Rights to Compensation Theory and Practice

certain designated groups because they continue, as a group, to suffer the consequences of the
original harm, or in recognition of the original harm itself. Furthermore, even if the rights to
compensation do attach to individuals, practicalities require that these rights be fulfilled for the
whole group.
Thus far we have concerned ourselves with the moral standing of preference policies for ethnic
and racial groups as a means of satisfying a group right to compensation for past harm
aggravated (possibly) by a legacy of socio-economic deprivation. Whatever direction these
arguments point in, the fact remains that preferential treatment (but usually under its more
anodyne name of affirmative action) is still used in the US and we need to remind ourselves of
the arguments and controversies concerning the practice itself. Preferential treatment is one way
of paying group compensation and one that in theory is well suited to the legacy of these
particular sorts of harms. But there are costs attached to preference policy and it is necessary to
identify the price that is being paid in order to effect compensation. Some of these concerns
reflect the difficulties of group compensation that were identified in Section A but others are
peculiar to the particular circumstances of preferential treatment in the US. What follows is a
brief analysis of each of the most significant concerns.53

3.3.1 Individual rights to preferenced positions

Whether compensatory rights can be said to attach to groups or to individuals carries some
potentially difficult consequences. Bayles, for example, notes that since the obligation (to
compensate) is to the group, no specific individual has a right to compensation54 and this must
have implications for those individuals in positions and jobs that they hold as a result of
preference policies. If, as Bayles maintains, a group right confers no individual right then
individual beneficiaries of group rights have no claim on the benefit and that will render their
status as students or employees more tenuous than that of those who have attained positions on
merit (or at least more regular) criteria.

3.3.2 The provenance of inequality

53

There are other country specific difficulties which are not included here. In the United States, the two most
important and current of these are the questions of immigration and affirmative action and the changing nature and
increasing diversity of groups. On the former see J. Robb, Affirmative Action for Immigrants: The Entitlement
Nobody Wanted (1995) Washington D.C.: Social Contract Press (Monograph), P.Skerry, Immigration and the
Affirmative Action State (1989) The Public Interest 96, pp. 85-102 and H. Graham, Affirmative Action for
Immigrants? The Unintended Consequences of Reform in J. Skrentny (ed.) Color Lines, Affirmative Action,
Immigration and Civil Rights for America (Chicago: University of Chicago Press, 2001), pp 53-70; on groups see G.
La Noue and J. Sullivan, Deconstructing Affirmative Action Categories in J. Skrentny (ed.) Color Lines:
Affirmative Action, Immigration and Civil Rights Options for America (Chicago: University of Chicago Press,
2001), pp.71-86, B. Frohnen, The One and the Many: Individual Rights, Corporate Rights and the Diversity of
Groups (2005) West Virginia Law Review, 107(3), pp. 789-849, E.T. Beck, From Kike to Jap: How
Misogyny, Anti-Semitism and Racism Construct the Jewish American Princess in F. Pincus and H. Ehrlich (ed.)
Race and Ethnic Conflict (Boulder: Westview, 1994), pp.162-168 and L. Dinnerstein, R. Nichols, and D. Reimers,
Natives and Strangers. A Multicultural History of Americans (Oxford: Oxford University Press, 1996), see in
particular chap.10.
54
M. D. Bayles, Reparations to Wronged Groups (1973), Analysis 33 (6) pp.182-184 at 183, quoted in J. Edwards,
When Race Counts ( London : Routledge, 1995).
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John EdwardsGroup Rights to Compensation Theory and Practice

Morally speaking, it ought not to matter what the cause of continuing deprivation and inequality
is. Greater levels of need, at least at the individual level, should call forth greater levels of help.
If, however, the claim is made that the inequalities are the result of past injustices (as is the case
with preference policies) then this alleged causal connection must be factored into any case for
compensation. For example, if it were discovered that the current relative deprivations and the
inequalities of African and Native Americans were not a continuing consequence of past harm
but due rather to culture, family structure, attitudes, transmitted inadequacy, or whatever
other epithets come to mind,55 the case for using preferential treatment for historical
compensatory purposes would fall. Present disadvantage would call for simple needs-meeting
strategies at the individual level, not compensatory strategies for groups.

3.3.3 Historical and future reach

Related to the question of provenance is that of historical reach.56 In the paramount examples we
have used here, the harms come attached to discrete events with approximate57 dates of
occurrence. This gives rise to the question of how long historical events can be viable as
explanations of current situations. How long can the institution of slavery or the genocidal
policies against the Native Americans remain viable explanations for the relative deprivations
currently suffered by Blacks and Indians? For the present, all we can say is that they remain very
plausible (though not universally accepted) and few would want to gainsay some continuing
causal connection. Empirically speaking and in a broader historical framework the end of slavery
was a relatively recent event and the demise of the Lakota Sioux, the Chihuahua, and the Nez
Perc even more so with mopping up and incarceration in disease infested reservations in
Florida continuing into the 20th Century. Recovery does not happen in such short periods but it is
reasonable to argue that our perception of history and its effects become more concertinaed with
the growth of information technology and we get impatient of history itself.
The present (and future) legacy of past events, therefore, will be a function as much of the
current state of a society and the pace of change within it as of anything else. Drawing the
temporal line under cause and effect, and hence the case for compensation, will in all likelihood
be a matter of intervening factors and fading memories.

3.3.4 Can there be a moral statute of limitations?

The cessation of a claim to compensation as a result of the passage of time is most easily, in the
present context, illustrated by Indian land claims (appropriation of their lands having been an
integral part of the genocidal policies). We should not, however, ignore the more difficult issue
of the exhaustion of the moral badness of slavery simply as a matter of the passage of time. This
55

The alternatives are well rehearsed in A. Hacker, Two Nations: Black and White, Separate, Hostile, Unequal
(New York: Ballantine Books, 1995). Other contributions to the arguments can be found in W. J. Wilson, The
Limited Visions of Race: Discrimination is not the Sole Problem in F. Pincus and H. Ehrlich (ed.) Race and Ethnic
Conflict (Boulder: Westview Press, 1994), pp.88-97.
56
G.C. Loury, Why Should We Care About Group Inequality? (1987) Social Philosophy and Policy 5 (1), pp.24975, at p.263.
57
There is nothing approximate, however, about the dates of Wounded Knee or the end of the Chihuahua or the
final demise of the Nez Perc in the Bear Paw Mountains [all well documented in D. Brown, Bury My Heart at
Wounded Knee (London: Picador, 1971) and R. Andrist, The Long Death (New York: Macmillan, 1964)].
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John EdwardsGroup Rights to Compensation Theory and Practice

is not so much a matter of cause and effect that we have noted above, as of the possibility of a
finite lifespan for moral concerns. Slavery will always have been an evil but can it always be an
evil of current concern such that compensatory or remedial action will always be thought
necessary? Historical precedent suggests not.
The question of moral time-expiry is more easily illustrated by the case of Indian land claims.
Leaving aside the matter of original occupants (and Lockean rights holders), whether from
across the Bering Straight or from the southern continent, there is no doubt that recent Indians
had claims to land, even if the idea of ownership was alien to many of the tribes either as a result
of treaty or habitual use. Neither is there any doubt that these lands were taken from them by
force, trickery, or commerce. That compensation of some sort is due is irrefutable but how long
can such property rights continue to hold? As Lyons has argued, it seems unlikely that property
(or occupation) rights can be sustained when all else in society is in flux.58 There will be new
immigrants starved of land, urban and industrial expansion, resource and mineral developments,
tourism, and so on. In the face of all this it cannot reasonably be maintained that Indians still
have exclusive ownership of these lands. But that is an argument from force of circumstance,
and to maintain that moral principles (in this case, human rights) can be erased by historical
inevitabilities remains unsettling. A sense of injustice remains and if historical circumstance
prevents restitution, then some alternative form of compensation must be found. How much and
what form that compensation should take is perhaps still a matter for debate, but it seems likely
that the historical legacy for the Indians will be less a matter of stolen lands, and more a case of
their socio-economic plight and isolation.
Each of the three preceding concerns entails the division of compensation into two components
(or different concepts) to which we have already drawn attention. First, if the provenance of
current deprivations among a group that suffered harm cannot be attributed to that harm then that
group would be able to claim a right only to compensation for the original harmrecognition or
some form of secular atonement, but not for restitution. However, the empirical enquiry that
would be needed to establish non-provenance would entail such sensitivities as to prevent it
being done. Second, questions of historical reach and a moral statute of limitations both
elaborate in different ways the empirical complexities of rectificatory compensation and the
moral intricacies of calling time on original harm. Both also evidence the interdependence of
moral theory and empirical probabilities.

3.3.5 Innocent victims and fortuitous beneficiaries

One aspect of preference policy that has greatly exercised the Supreme Court in America is the
identity of the beneficiaries and victims or, more pointedly, the fortuitous beneficiaries and
innocent victims. I have discussed this matter elsewhere59 and need only mark it up here as
one of the important dilemmas of preference policy.
The essence of preferential treatment is that its individual beneficiaries (those who get university
places or jobs) are selected on the basis of a group characteristic that is morally arbitrary but also
that the whole group supposedly is a beneficiary if only vicariously through the betterment of
58

D. Lyons, Rights, Claimants, and Beneficiaries (1969) American Philosophical Quarterly 6 (3), pp. 173-65 and
The Correlativity of Rights and Duties (1970) Nous 4, pp. 45-55.
59
See J. Edwards , Preferential Treatment and the Right to Equal Consideration in P. Cumper and S. Wheatley
(eds.), Minority Rights in the New Europe (Dordrecht: Kluwer Law International, 1999 ), pp.147-164.
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John EdwardsGroup Rights to Compensation Theory and Practice

individuals. There will be victims toothose who fail to get jobs or places which, on the merit
system, they had a reasonable expectation of getting but which have gone instead to affirmative
action appointees. They will be mainly white males, and to a lesser extent females, but may also
and increasingly include members of other minority groups.
So, whilst preferential treatment is quintessentially a group practice, the benefits and costs fall
on identifiable individuals. Hence we come up against another component of the individual vs
group rights conflict. It seems very unlikely, given the historical reach, that the individual white
victims have been party to the oppression except to the extent that they belong to a group
which has benefited and which may continue to benefit from the disadvantaged position of black
people.60 The same may be said in reverse for beneficiaries. Affirmative action appointees in
jobs or universities must be at least minimally qualified. It is therefore unlikely that they will be
among the most disadvantaged African or Native Americans.
Consequently, it would appear that justice is not being served at the individual level. The
question will always hang in the air: why should these particular people be the beneficiaries or
victims? It might be said that the victims had a right to the university place or job on the basis of
merit.61 These rights, it may be claimed, have been violated in the pursuit of group
compensation, the beneficiaries of which had no individual right to the positions they obtained.
This, in a nutshell, is the conflict between group and individual rights and it is one that clearly
cannot easily be resolved by weighing up the costs and benefits of each in principle. They are
incommensurable, their logics incompatible.
But to argue this is of little help in the face of strong moral arguments for the need for
compensation for past harm, hence the longstanding and sometimes acrimonious debate over
preference in America and the repeated failure of the Supreme Court to hold to a strong line. The
moral dilemma is very real and ultimately compromise and some direction from the Courts has
been the only way forward.62

3.3.6 Rights and distributive justice: problems of justice in preference within and
between groups
We have noted above that it is likely that the benefits of preference among African Americans
have not been such as to reduce inequalities within that group. Preference jobs, positions, and
university and college places have not gone to the poorest sections of the black population but
rather to those already knocking at the door of advancement. 63
60

A. Goldman, Reparations for Individuals or Groups? (1975) Analysis 35, pp. 168-70, at p.169, F. Lynch,
Invisible Victims: White Males and the Crisis of Affirmative Action (New York: Greenwood Press, 1989) and W.A.
Nunn, Reverse Discrimination (1973) Analysis 34 (5), pp. 151-54.
61
This is a view robustly put by Lynch for whom there can be no justification for violating the rights of people
awarded positions on established criteria of merit (Lynch 1989). Dworkin, on the other hand, counters this
argument by saying that the reason for compensatory action is just that had black people not been harmed, they
would now be getting these positions on merit (Dworkin 1977), Lynch, Invisible Victims: White Males and the
Crisis of Affirmative Action, see fn.60 and R. Dworkin, Taking Rights Seriously (Cambridge, Mass: Harvard
University Press, 1977).
62
J. Edwards, Collective Rights in the Liberal State (1999) Netherlands Quarterly of Human Rights 17 (3),
pp.259-275.
63
See for example W. G. Bowen and D. Bock, The Shape of the River, Long-Term Consequences of Considering
Race in College and University Admissions (Princeton: Princeton University Press, 1998), W. T. Blackstone,
94

John EdwardsGroup Rights to Compensation Theory and Practice

The consequences of the patterns of preference have included a new black middle class64 and
an increase in inequalities within the black group.65 Indeed, it may well be that preference
policies have served to polarise African Americans socially, economically, and culturally.
A corollary of individual distributive justice within groups is the effect of preference policies on
the relative standing of minority groups themselves. Though all designated preferred groups are
by definition disadvantaged vis a vis the majority white groups (and other minority groups such
as Jews and Chinese), they are also inter se differentially disadvantaged. Comparisons of course
are made difficult by the large differences in size of the groups and their different geographical
locations (Hispanics now constitute the majority population in parts of California for example,
and out-number African Americans nationally). But recognition of the importance of taking
account of inter-group differences and, more importantly, of disaggregating the generic label
minority groups has been very patchy during the history of preference policy.
Ever since Bakke, race conscious practices had to be subject to strict scrutiny and the Supreme
Court often applied this criterion. Strict scrutiny required that a practice be narrowly tailored to
achieve a compelling state interest66 and among its components was a requirement that a
practice ensured a close relationship (between any) numerical goals (it contained) and the
relevant labor market.67 In theory, though not always in practice, this required a close tailoring
of the practice to the particular aspects of the harm for which it was the intended remedy and this
would require recognition of the diversity of minority groups and a focus on only that group that
had been harmed. Although strict scrutiny had often been applied after Bakke,68 this had not
always included exclusive focus on the harmed group. Tailoring by specific group came to
greater prominence, however, as a result of City of Richmond v J.A. Croson Company (1989) and
more recently in Grutter v Bollinger (2003).69
The city of Richmond had a construction set-aside programme by which 30% of the dollar value
of all primary contracts went to minority companies. The Supreme Court noted in Croson that
the programme was open to all minority groups in the city and not just to African Americans
who were historically the only group the city had harmed and to whom it might owe
compensation. As Justice Sandra Day OConnor noted, the set-aside was open to Hispanic or
even Inuit companies and could be viewed as intended to be a palliative to all and any harmed
groups. There had been no attempt on the part of Richmond to tailor its programme specifically

Reverse Discrimination and Compensatory Justice in W.T. Blackstone and R.B. Heslep (ed.) Social Justice and
Preferential Treatment (Athens: University of Georgia Press, 1977), pp.52-83 and N. Capaldi, Out of Order:
Affirmative Action and the Crisis of Doctrinaire Liberalism (Buffalo, NY: Prometheus, 1985).
64
R. Polenberg, One Nation Divisible (New York: Penguin, 1980).
65
Fifteen years ago, US News and World Report maintained that 40% of Black families were middle class. It did
not support this claim with any further evidence, see S. Roberts Affirmative Action on the Edge (1995) US News
and World Report, February 13.
66
See fn.30.
67
It should be noted that compelling state interest in the context of preference policy may not be restricted to the
purposes of compensation. Promoting a diverse intake to medical or law schools for example might also survive
strict scrutiny, see L. Garfield Squaring Affirmative Action Policies With Federal Judicial Guidelines: A Model for
the Twenty First Century (1996) Hees Review, available at http://www.review.org/issues/vol7no3. Last accessed
22 February 2010.
68
United States v. Paradise , see fn.9.
69
City of Richmond v. J.A. Croson Co 488 US 469 (1989) and fn.44.
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John EdwardsGroup Rights to Compensation Theory and Practice

to the one group it had harmed and under strict scrutiny the programme was struck down.70 The
Court did recognise the need for some compensatory preference but it would have to survive
strict scrutiny.

3.3.7 Who holds the rights?

No tour dhorizon of the difficulties associated with group-oriented preference would be
complete without some consideration of the at once esoteric but also pragmatic issue of who, or
what, holds a group right?71 Can an ethnic or racial group (all African Americans, American
Indians, Hispanics) be the sort of entity that can hold a right? Fullinwider entertains the idea that
whole groups can be counted as if they were corporations with the same attributes as any other
corporation including the capacity to hold rights.72 However, as he concedes, he is not convinced
by the idea which would, apart from anything else, require substantial changes in federal and
state laws in respect of what constitutes a corporation.73
Another attempt at pinning down the identity of the holder of a group right has been to say that
the right attaches to all members of a group individually in virtue of their membership of the
designated group. This formulation, however, serves only to make the problem more difficult of
resolution. In the first instance it is hardly distinguishable from individual rights. It does not
establish a case for a group right as such. Second, if the group right is established by arguing
that it manifests itself as rights held by every member of the group qua members, it falls foul of
our original difficulty that rights (individual or group) cannot attach to morally arbitrary
characteristics. Membership of an ethnic or racial group cannot in itself be the basis of having
rights. One further attempt to locate the holder of a group right to compensation is, as we have
seen, to argue that the right is held by the group because the group as a whole has been harmed
and continues to suffer distress. The right is held in virtue of the morally relevant characteristic
of harm, not of ethnicity or race. In this sense, the group is a kind of noumenal body that may
gain collective vicarious well-being from the benefits serendipitously endowed on individual
members. It has to be said that this is probably as near as it is possible to get to a formulation of
groups as holders of rights in the present context.
This survey of the difficulties raised by the practice of preferential treatment gives emphasis to
two broad areas of concern, one of which the dual nature of compensationwe have
considered at greater length in the theoretical context of Section A. The otherthe antagonism
of group versus individual rightshas revealed itself more acutely as a product of the practice of
a compensatory mechanism in the form of preferential treatment. Taken together, these two
broad topics mark out the territory over which future debate about group and individual rights to
compensation will need to be argued.

4.

Unfinished Business

70

D. Lively, The Constitution and Race (New York: Praeger, 1992), D. Cathart, D. Burcham, and J. Sulds,
Affirmative Action and Reverse Discrimination: Status of Quotas, Goals and the Emerging Standard of Strict
Scrutiny (Mimeo, Los Angeles: Gibson, Dunn and Crutcher, 1990) and W. Murphy, Supreme Court Review
(Mimeo) Paper Presented at Annual Meeting ABA Labor and Employment Law Section, (1989).
71
Needless to say, no such problem arises with individual rights.
72
R. K. Fullinwider, The Reverse Discrimination Controversy (Totowa, NJ: Rowman and Littlefield, 1980), pp.6165.
73
On the matter of groups constituting corporations see French, Collective and Corporate Responsibility, fn.20.
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John EdwardsGroup Rights to Compensation Theory and Practice

This article has tried to demonstrate that groups characterised by four particular, if speculative,
criteria can have group rights if the rights are significant enough as judged by their position in
the canon of statute rights. Though compensation for harm makes little explicit appearance in
human rights statutes, it must underpin a great deal of human rights doctrine. (Rights unattached
to any means for the correction of their violation would be of little value.)
In the subsequent discussion we have noted the importance of recognising two distinct types of
compensation and the difficulties this raises for the practice of preferential treatment as a
compensation mechanism and have considered in both theory and practice what types of group
might qualify for compensation for harm.
What we have not done and what ought to be marked up for future consideration is the
relationship between harm and rights to compensation. If compensation can (ought) to be
made both for the original harm done to a group and for its deleterious legacy then we need to
know what sorts of things can trigger a claim of rights violation. Slavery and attempted genocide
are of such a magnitude of horror that the need for compensation is incontrovertible. But this
does not provide the sort of general guidance that the question of group compensation requires.
A group may qualify to hold a right to compensation (in the sense of possessing the relevant
characteristics) but what must trigger the implementation of that right is the nature and
magnitude of the original harm. Slavery and genocide will trigger a right to compensation
because of their magnitude but also because they constitute rights violations themselves. But do
all the harms that might befall groups that qualify to have a right to compensation constitute
rights violations and if they do not, can they trigger the implementation of compensation? In
short, are all harms done to groups themselves violations of rights that the groups hold?
Pragmatically speaking this probably matters little because it is difficult to envisage harms done
to groups that are not also violations of their rights. Theoretically speaking, however, we have to
acknowledge the possibility that not all harms are violations of rights, and neither do all
violations of rights cause harm. If the former were to be the case, could a non-rights violating
harm call forth a right to compensation (at least with the same degree of force as a rights
violation)? So far as the latter is concerned (rights violations without harm), we have noted
examples in the cases of Jews and Chinese in the United States for whom no preferential
program exists (but for political rather than principled reasons).
The theory of group compensation has some way to go before it constitutes a consistent body of
thought but it is far more developed than its practice, at least in the form that preference policy
will allow. Preference policy in the United States has developed in response to changing
constitutional interpretations by the Supreme Court in the absence of (or at least with inattention
to) a corpus of theory that could have provided a basis for more consistent action.
A more detailed, more coherent set of ideas such as that attempted here might come in useful if
group rights to compensation goes in the same direction as individual rights where the
proliferation of trivial claimed rights has led almost to the disappearance of any distinction
between being harmed and having a right. Such a decay of the majesty of rights will best be
avoided in the case of group rights if they are based on sound theory and a clear conception of
moral relevance in practice.

97