Article

Group Rights in Comparative Constitutional Law: Culture, Economics, or Political Power?

Sujit Choudhry

in The Oxford Handbook of Comparative Constitutional Law

Published in print May 2012 | ISBN: 9780199578610
Published online November 2012 | | DOI: http://dx.doi.org/10.1093/oxfordhb/9780199578610.013.0055

Series: Oxford Handbooks in Law

Group Rights in Comparative Constitutional Law: Culture, Economics, or Political Power?

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This article sketches an alternative picture of group rights and the political sociology that underlies them. It 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. A careful examination of constitutional practice reveals that: group rights are a response to political mobilization not only on issues of cultural survival, but around the unequal distribution of economic resources and opportunities, the unequal enjoyment of public services, and unequal access to political power; group rights are claimed by a broad variety of groups, including territorially dispersed minorities and groups that may constitute a majority in the state; in addition to rights to self-government or autonomy, group rights relate to political power, and are designed to ensure representation and participation in common institutions, take a broad variety of forms, arise in a variety of institutional contexts (electoral system design, political party regulation, legislative voting rules, the structure of political executive, courts), are usually not held and exercised by groups acting as a corporate entity, and are best understood as mechanisms to incorporating a group perspective into collective decision-making; and these group rights produce a variety of conflicts with the individual rights of group members and non-members that are materially different from the kinds of rights violations that the political theorists' constitutional image of group rights would suggest.

Keywords: group rights; political theory; comparative constitutional law; self-government; autonomy

Article.  14352 words. 

Subjects: Law ; Comparative Law ; Constitutional and Administrative Law

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