Rights, groups, and self-invention: Group-differentiated rights in liberal theory

Group-differentiated rights, or rights that vest on the basis of an individual's membership in a particular social or cultural group, are an increasingly common and controversial aspect of modern legal systems. This dissertation seeks to describe and critically assess the group-differentiated form of right from within analytical, constitutive and liberal theory.; The dissertation's core claim is that, by its nature, the group-differentiated form of right serves further to constitute aspects of human identities, and, further, that this constitutive aspect should be a cause for anxiety from a liberal perspective. Group-differentiated rights, through processes of inclusion and exclusion that are intrinsic to law and derivative of formal justice, sort and construct individuals as members of particular social groups. A legal system's invocation of the group-differentiated form of right thus influences the course of individual self-invention. Hence, along with the more obvious, and more frequently remarked upon, sacrifice that group-differentiated rights exact in formal equality, and along with the substantial benefits and opportunities such differential policies may provide, group-differentiated rights present the prospect also of a significant moral loss in constitutive autonomy.; The first chapter seeks to discern that which is distinct in the group-differentiated form of right, and to locate this work within the broader framework of rights and liberal-multicultural theory. The second chapter explores collective aspects of individual rights, including in particular the legislative and adjudicative processes that give rise to group-differentiated rights. The third chapter seeks a reconceptualization of the relationship between rights and identity, arguing that group-differentiated rights further construct individuals as members of particular groups. The fourth chapter constructs a liberal conception of membership against which to assess group-differentiated rights. The fifth chapter describes three models of the process by which social and cultural groups and identities may be constituted by rights, and evaluates each model in light of liberal principles. The analysis demonstrates that while the group-differentiated form of right does indeed threaten individual constitutive autonomy, the true extent of any loss depends in significant part upon the particular model invoked.