Oxford Journal of Legal Studies, Vol. 22, No. 1 (2002), pp.

91113

Rights and Participatory Goods

JAMES MORAUTA

AbstractMany people think that rights can be held by agents other than in-
dividualsthat is, by agents other than individual human beings. But are there any
rights which must be held by agents other than individuals, which cannot be held by
individuals? In this paper I consider one recent claim of this sort: that a right which
is grounded in interests in a participatory good cannot be held by an individual. I
call this claim the holding constraint. I examine the two main arguments for the
holding constraint, and show that they both fail. In addition to having implications
for the theory of group rights, these arguments raise important general issues about
the nature of rights and participatory goods.

1. Holding Rights
Rights can be held by agents other than individualsthat is, by agents other
than individual human beings. Some people dispute this claim. But assume for
the moment that it is correct: that companies can hold rights, or that governments
can hold rights, or that groups can hold rights, etc. Are there any rights which
must be held by agents other than individuals, which cannot be held by individuals?
In this paper I will consider one recent claim of this sort: that a right which is
grounded in interests in a participatory good cannot be held by an individual. I will
call this claim the holding constraint. It is a constraint on the kind of entity that
can hold a certain sort of right.1
This holding constraint is often put forward as part of a theory of group rights.
The general idea is that if the holding constraint is correct, then a right which
is grounded in interests in a participatory good, since it cannot be held by an
individual, must be a group right of some sort. It must be a right which is held
by a group as such, or a right which is held jointly (whatever that means) by
each of the members of a group, and so on.
But the implications of the holding constraint for the group rights issue are
not my main concern here. My aim is to assess the constraint itself. I will

St Catherines College, Oxford University.

1
The most prominent recent argument for this holding constraint, and the one I will focus on, is given in a
series of articles by Denise Reaume: see Individuals, Groups, and Rights to Public Goods (1988) 38(1) University
of Toronto Law Journal 1 (hereafter Individuals), and The Group Right to Linguistic Security: Whose Right,
What Duties? in J. Baker (ed.), Group Rights (1994) (hereafter Whose Right?). Peter Jones recent discussion of
Reaumes argument suggests that he too may accept the holding constraint: see P. Jones, Group Rights and Group
Oppression (1999) 7(4) Journal of Political Philosophy 353 at 35961. Jones rejects the idea that a rights being
grounded in interests in a participatory good is a necessary condition for it being a group right. But he does not
raise any objection to Reaumes claim that such a right cannot be held by an individual.
2002 Oxford University Press
92 Oxford Journal of Legal Studies VOL. 22

consider the two main arguments for the constraint, and show that they both
fail. To properly assess these arguments I will need to examine a number of
important general issues about the nature of rights and participatory goods,
including: the justification of rights; the definition of participatory goods and
the nature of interests in such goods; the idea of a control requirement on
holding rights; and the relationship between the capacity to hold and the capacity
to exercise a right. The link between the holding constraint and these broader
issues gives the constraint a theoretical interest quite apart from any role it may
play in the theory of group rights.
My argument proceeds as follows. To tackle these issues we need a general
analysis of rights in the background; in section 3 I sketch the analysis I favour.
In section 4 I explain the concept of a participatory good. In sections 56 I set
out the main argument for the holding constraint, and show where it goes wrong.
In section 7 I consider a second, alternative argument for the holding constraint,
and I sketch two dierent responses to this alternative argument which rest on
dierent views about the relationship between holding and exercising a right.
Before I get to all this, however, I begin in section 2 with a brief methodological
comment.

2. Methodological Comment
My claim in this paper is a conceptual one: the two main arguments for the
holding constraint fail to show that there is anything in the concept of a right
or a participatory good which precludes individuals from holding rights which
are grounded in interests in those goods.
This conceptual claim is limited. Note, in particular, that it leaves open some
significant normative (moral, political) questions. For example, it leaves open the
question of how best to protect interests in participatory goods. I will argue,
against the holding constraint, that it is possible for individuals to hold rights
which are grounded in interests in participatory goods. But it does not follow
that giving individuals such rights is the best way to protect those interests.
Perhaps the best way to protect them is by giving rights to other kinds of agents
(groups for instance); or perhaps the best way to protect them does not involve
using rights at all. These further normative issues are obviously important. But
they are nevertheless further issues, and they are not ones that I will try to settle
here.

3. The Interest Theory of Rights

A. The Analysis
To give our discussion some structure we need to begin with a general analysis
of rights. I favour the interest theory of rights. The interest theory is also accepted
SPRING 2002 Rights and Participatory Goods 93
by most of those who defend the holding constraint. Here is a formulation of
the theory, taken, with slight modifications, from Joseph Raz:2
The Interest Theory of Rights. x has a right if and only if: (a) x is capable of holding
rights; and (b) x has an interest in good(s) G; and (c) there is a sucient justification
for imposing duties upon some other person(s) which protect or promote or otherwise
serve xs interest in G.

I use the term good very broadly: to refer to any object, event, activity or state
of aairs in which an agent might have interests.
Clause (a) of the interest theory is a capacity condition. Now, the question of
what features an agent must have in order to be capable of holding rights is an
important one. But capacity in this sense is not what I am concerned with in
this paper. The claim made by the holding constraint, that individuals cannot
hold rights which are grounded in interests in participatory goods, does not rest
on the claim that individuals do not satisfy (a). Of course they do! I will not
have any more to say about the capacity condition here.3

B. The Justification of Rights

The main point I want to emphasize about the interest theory is what it says
about the justification of rights.4 The duties which must be imposed in order
for an agent to have a right are not merely correlative with some set of interests.
Those duties, and hence that right, are justified by the need to protect or
promote or otherwise serve (hereafter simply protect) certain suciently weighty
interests. But how precisely do interests figure in the justification of rights?
We can start by noting that the interest theory makes it an essential feature
of rights that they protect the interests of the right-holder. Given this, it is
tempting to think that the only factors relevant to the justification of a right are
the interests of the right-holder. But that would be a mistake.
What the interest theory requires is simply that there be a sucient justification
for imposing duties which protect the interests of the right-holder. The jus-
tification for imposing those duties may be based upon the interests of the right-
holder. But the justification may also be based upon other factorsin particular,
upon the interests of other agents. Intuitively, imposing duties which protect a
right-holders interests can be something which is also in the interests of other
agents. Indeed, it may be that the right would not have been justified if it had
not also served those other interests; it may be that the interests of the right-
holder alone would not have been enough to justify giving her the right.

2
J. Raz, The Morality of Freedom (1986) at 1668. One area where I depart from Raz is that I do not identify
rights with the interests protected by the duties. For discussion of this issue, see J. E. Penner, The Analysis of
Rights (1997) 10 Ratio Juris 300 at 30611.
3
For some of the issues, esp. regarding the capacity of groups to hold rights, see J. W. Nickel, Group Agency
and Group Rights in W. Kymlicka and I. Shapiro (eds), Ethnicity and Group Rights (1997).
4
My account here is indebted to Razs treatments in Ethics in the Public Domain (1994), Ch. 2 esp. at 2940,
Ch. 6 esp. at 1348; and in Rights and Politics (1995) 71 Indiana Law Journal 27 at 314. See also Raz, above
n 2, Ch. 10.
94 Oxford Journal of Legal Studies VOL. 22

Consider for example the right that a parent caring for a child with severe
mental and physical disabilities has to financial support from the government.
(Assume she has such a right.) The parents right to support is partly justified
by the interests of the parent, who may be placed under tremendous emotional,
psychological and financial strain by the situation she is in. But the parents right
is obviously also justified by other factors, most notably the interest that the child
has in the parent receiving financial support from the government. Furthermore, it
seems clear that the parents right would not have been justified if it was not
also in the childs interest that the parent receive that support; the parents
interest alone would not have been enough to justify giving her the right.5
Where a right is justified by appeal to a certain set of interests, we can say
that the right is grounded in those interests. The point I have been making is that
the set of interests which ground a right can include the interests of people other
than the right-holder. There is one last thing to note about this idea of grounding
interests. I said earlier that, according to the interest theory, it is an essential
feature of a right that it protect (or promote or otherwise serve) the interests of
the right-holder, at least to some degree. But this point about protection is
actually more general: a right protects all the interests which ground it, not
merely the interests of the right-holder. For all the interests that ground a right
contribute to its justification; and if an interest contributes to the justification
of a right, then presumably the right protects (or promotes or otherwise serves)
the interest in some way.6
The holding constraint says that a right which is grounded in interests in
participatory goods cannot be held by an individual. We now know what it
means for a right to be grounded in an interest. In the next section I will
explain the notion of a participatory good.

4. Participatory Goods
A. Definition
There is no standard definition of a participatory good in the literature. But a
common element in many definitions is something like the following: a good G
is a participatory good if and only if G is constituted by an activity which requires
the participation of more than one individual. It is not merely that the production
of a participatory good (bringing it into existence or sustaining it in existence)
requires more than one individual to participate in a certain kind of activity
although that is certainly true. Rather, a participatory good just is the activity in

5
A similar welfare rights example is discussed by Raz, Ethics in the Public Domain, above n 4 at 35.
6
An interesting question: if a right can be grounded inand hence protect or promote or otherwise serve
interests other than those of the right-holder, what distinguishes the right-holder from those other people whose
interests are (merely) served by the right? One traditional answer is: the right-holder has a special sort of control
over the right (more on control later). But there are also other ways to draw the distinction: see Raz, Ethics in the
Public Domain, above n 4 at 357; Penner, above n 2 at 3013.
SPRING 2002 Rights and Participatory Goods 95
which those individuals participate. The activity of producing a participatory
good also constitutes the participatory good.7
Two brief clarifications. First, the fact that any activity which constitutes a
participatory good requires the participation of more than one individual will be
important in what follows. But the question of how many more is not critical. It
seems that the answer to this question will vary from case to case: for each
activity which constitutes a participatory good, there will be a threshold number
of people that must participate in that activity in order for it to be viable, and
that threshold will vary depending on the activity in question. Sometimes the
threshold will be as few as two people, as in the case of friendship which I
discuss below; in other cases the threshold will be higher. But as I said, the exact
thresholds are not important. The key point is just that any activity which
constitutes a participatory good requires more than one participant.8
The second clarification is that the notion of participating in an activity
should be understood in a fairly broad sense which includes, for instance:
refraining from certain sorts of activities; and being disposed to participate in or
refrain from certain sorts of activities. (My discussion of friendship below
illustrates why this broad understanding is required.)
Now, a full theory of participatory goods must say something about why we
value these activities in the way we do. But it is not necessary to go into this
evaluative issue here. For our purposes it will be enough to consider a few
examples of activities which are standardly taken to constitute participatory
goods. My claim about these examples is merely that some aspects of the goods
in question have the structure of participatory goods, not that they are exclusively
participatory in nature.

B. Examples
Friendship is a good example of a participatory good.9 Whatever good it is that
friendship involves, it seems very plausible that at least part of that good is
constituted by certain distinctive sorts of activities that require the participation
of more than one individual. Our acting in these distinctive ways towards each
other (or our being disposed so to act) is not just a way of producing our
friendship; it does not just bring our friendship into existence or sustain it in
existence. Rather, it constitutes our friendship.
As I suggested above, the case of friendship also illustrates why the notion of
participating in an activity needs to be understood in a broad sense which
7
For related definitions of participatory goods see L. Green, Two Views of Collective Rights (1991) 4(2)
Canadian Journal of Law and Jurisprudence 315 at 3201; L. Green, The Authority of the State (1988) at 2069; L.
Green, Internal Minorities and their Rights in J. Baker (ed.), Group Rights (1994) at 103; M. Hartney, Some
Confusions Concerning Collective Rights (1991) 4(2) Canadian Journal of Law and Jurisprudence 293 at 298301;
Raz, Rights and Politics, above n 4 at 356; Reaume, Individuals at 713; Reaume, Whose Right? at 1201;
J. Waldron, Can Communal Goods be Human Rights? in J. Waldron, Liberal Rights (1993) at 3549.
8
The idea of an activity requiring a threshold number of participants in order to be viable will come up again
in my discussion of choice-rights: see section 6(B)(ii) below.
9
e.g. Green, The Authority of the State, above n 7 at 2078; Green, Two Views, above n 7 at 321; Hartney,
above n 7 at 298; Jones, above n 1 at 360.
96 Oxford Journal of Legal Studies VOL. 22

includes being disposed to participate in an activity. For, arguably, it is not quite

right to say that a friendship is constituted by people actually participating in
certain distinctive sorts of activities. The fact that those people are disposed to
participate in those activities would seem to be enough, at least in some cases,
to constitute a friendship.
Another commonly cited example of a participatory good is the good of
speaking ones native language. If speaking ones native language does involve
some distinctive kind of good (something I will not rule on here), then it is
arguable that at least some aspects of that good are constituted by certain
distinctive sorts of activities that require the participation of more than one
individual.10 Our speaking this language to each other (or our being disposed so
to speak) is not just a way of producing the good involved in speaking a native
language; it does not just bring that good into existence or sustain it in existence.
Rather, it constitutes that good.11
I will be drawing on this language example to illustrate my argument in a
number of places below. This is largely to link up with the existing literature:
rights grounded in interests in speaking native languages are frequently used to
illustrate the holding constraint.12 But we need to be somewhat cautious about
this use. For even if we do have interests in speaking our native language as
such (as opposed to having interests in speaking some language that allows us to
eectively communicate, to express thoughts, which is spoken by the people we
care about, etc.), I suspect that those interests are generally quite weak, and that
they will often not be strong enough to justify imposing significant duties on
others. Whether those interests are strong enough to justify a right will depend,
in each case, on the kinds of duties that are associated with the right. This means
that we must be careful to spell out the precise contents of the rights we are
discussing. (I try to do this especially in section 6(B), where I distinguish between
two kinds of rights that might be grounded in interests in speaking a native
language.) However, so long as we keep these points in mind, I am happy to go
along with the crowd in using the example of rights grounded in interests in
speaking native languages.
That completes my explanation of the structure of participatory goods. The
question now is whether the holding constraint is correct. Is the structure of a
participatory good such that any right which is grounded in interests in such a
good cannot be held by an individual? In section 5 I will set out the main
argument for the holding constraint, and in section 6 I will assess the key move
in the argument. (I consider a dierent argument for the holding constraint in
section 7.)

10
When I say that a persons speaking her native language is a distinctive good, I mean that it has a value
that the person would not attach to speaking any other language which does the usual jobs that languages do:
facilitate communication, express thoughts, etc.
11
For some other suggestions for participatory goods, see e.g. Green, The Authority of the State, above n 7 at
2079 (the pleasures of civic life); Jones, above n 1 at 360 (a team game, a convivial party); Reaume, Individuals
(living in a cultured society, being a member of a religious community).
12
e.g. Reaume, Individuals at 1726; Reaume, Whose Right? at 127.
SPRING 2002 Rights and Participatory Goods 97

5. The Main Argument for the Holding Constraint

A. An Outline
The main argument for the holding constraint has two basic steps. It starts with
the claim that:
(1) An individual cannot enjoy a participatory good on her own.
And then it says that (1) entails:
(2) An individual cannot hold a right which is grounded in interests in a
participatory good.13
The conclusion in (2) is meant to be a strong one: it is meant to express a kind
of conceptual constraint on the kind of entity that can hold a right which is
grounded in interests in participatory goods.14 And of course, (2) is simply the
holding constraint. I will try to show that this argument for (2) does not work.
To assess the argument we need to ask two questions. First, is the starting point
(1) true? Second, does (1) entail the conclusion (2)? Take these one at a time.

B. The Argument for (1)

Should we accept the starting point (1)? If (1) is false, then the main argument
for the holding constraint does not even get o the ground. But it seems to me
that we should accept (1). In order to see this, we need to clarify its meaning
in two ways.
First, what does the term enjoy mean in (1)? The intuitive idea is roughly
this: to enjoy a good is to have ones interest in that good satisfied; or at least,
to have ones interest satisfied at a certain time or for a certain period. Second,
what does the phrase on her own mean in (1)? There are a number of possibilities
here. The most natural way to read this phrase in the present context is as
equivalent to: unless more than one individual engages in a certain kind of
activity.
We can make these two clarifications explicit by expanding (1) to read as
follows:

13
For explicit statements of this two-step argument see Reaume, Individuals at 613 (e.g. at 6: If there is a
right to a good which cannot be enjoyed by a single individual (i.e. a participatory good), it cannot belong to a
single individual; at 11: An individual cannot have a right to such an activity [one which constitutes a participatory
good] because it cannot be enjoyed as an individual); and Reaume, Whose Right? at 11924. Peter Jones repeats
the argument: see Jones, above n 1 at 360. Michael Hartney takes Reaumes argument for (2) to be that it follows
from a slightly dierent claim, namely that: (1) Individuals cannot have interests in participatory goods (see
Hartney, above n 7 at 299300, 309). As Hartney points out, (1) is certainly false. But Reaume would agree. As
she says in her response to Hartney, her claim is that (2) follows from (1), not from (1) (see Reaume, Whose
Right? at 122, 139 n 11).
14
See again Reaume, Individuals at 7 (there is a structural aspect of certain goods that works to render an
individual right [to those goods] conceptually impossible); Reaume, Whose Right? at 124 (the idea of individual
rights to participatory goods is conceptually flawed).
98 Oxford Journal of Legal Studies VOL. 22

(1) An individual cannot enjoy a participatory goodi.e. an individuals

interest in a participatory good cannot be satisfiedunless more than one
individual engages in a certain kind of activity.

It is this expanded version of (1) that I take to be behind the main argument
for the holding constraint. (From now on I will assume that the original and
expanded versions of (1) are equivalent. For convenience, I will generally use
the shorter, original version.)
Should we accept this expanded version of (1)? It seems clear that the answer
is yes. For (1), so understood, follows straightforwardly from our definition
of participatory goods. An individual cannot enjoy a participatory goodan
individuals interest in a participatory good cannot be satisfiedunless the good
exists; and according to our definition of participatory goods, that cannot happen
unless more than one individual participates in the activity constituting the good;
so an individual cannot enjoy a participatory good unless more than one individual
engages in a certain kind of activity. For example, I cannot enjoy the participatory
good of speaking my native languagemy interest in speaking my native language
cannot be satisfiedunless others speak that language with me.

C. The Argument that (1) Entails (2)

I have argued that we should grant (1). So far as I can see, (1) follows from the
definition of participatory goods. But why is (2) supposed to follow from (1)?
It is often just stated that (1) entails (2), as if the reasons for the entailment were
obvious. In fact, they are not at all obvious.
It seems to me that the strongest (and the most interesting) argument for
thinking that (1) entails (2) goes something like this. The reason that an individual
cannot hold a right which is grounded in interests in a participatory good (i.e.
the reason that (2) is true) is that the holder of a right must have some kind of
control over the right, and the fact that an individual cannot enjoy a participatory
good on her own (i.e. the fact that (1) is true) means that an individual cannot
have the relevant sort of control over a right which is grounded in interests in a
participatory good. As it stands, this formulation of the argument is quite loose.
Let me now try to tighten it up.

(i) Two more premises

To get from (1) to (2) we need two additional premises.
First Premise. The first premise, which I will call the Control Thesis, is a claim
about (part of) what is involved in being the holder of a right. The basic idea is
this: it is a necessary condition for an agents holding a right that the agent have
some sort of control over the right. We can make this more precise by filling out
what we mean by having control over a right. My view is that having control
over a right is best understood as having control over the benefit of the right.
A natural way to formulate this control requirement is as follows:
SPRING 2002 Rights and Participatory Goods 99
The Control Thesis. x holds a right R only if x has control over the benefit of R, and x
has control over the benefit of R if and only if the following is true: If the accrual of
the benefit of R depends upon the performance of some action
, then either (a)
is
an action which x can perform, or (b)
is an action which can be performed by some
other agent y, and R gives x the power to demand that y perform
.

The idea of an act
upon which the accrual of the benefit of a right depends
should be understood in a broad sense which includes, for instance: acts which
waive any duties associated with the right; and acts which direct the manner in
which those duties are performed.
Should we accept this Control Thesis? We can split this into two questions.
The first question is whether the idea of a control requirement on holding rights
can be accommodated by an interest theory of rights of the sort we are working
with here. This is not a serious problem. It is true that control requirements are
often associated with so-called choice theories of rights rather than with interest
theories.15 But I cannot see any reason why an interest theory could not
accommodate some sort of control requirement if it wished to.
The second question raised by the Control Thesis is simply whether it is true.
Is there really a control requirement on holding rights? There are many issues
here, but the main barriers to accepting some sort of control requirement are
the apparent counter-examples: the cases where right-holders apparently do not
have the required element of control.
In relation to these supposed counter-examples, it is worth noting that the
sense of control associated with the Control Thesis is broader than the senses
associated with many existing choice theories of rights. This may help the Control
Thesis to avoid some of the counter-examples that have been raised against
those choice theories. For instance, consider the following fairly narrow control
requirement: a right-holder must have control over a right in the sense of having
a power to waive the duties associated with the right. On one view, inalienable rights
provide counter-examples to this narrow control requirement. The reason,
according to this view, is that an inalienable right is by definition one whose
associated duties cannot be waived by the right-holder.16 But even if this view of
inalienable rights is correct, such rights are not necessarily counter-examples to
the Control Thesis. For the holder of an inalienable right might still have control
over the benefit of the right in the broad sense associated with the Control Thesis.
She might, for instance, be able to direct in various ways the manner in which
those duties are performed.
(What if the proper interpretation of inalienable rights is that the accrual of
their benefits does not depend on the performance of any action at all? Well,
that actually makes things easier for the defender of the Control Thesis. This is

15
For the choice theory see H. L. A. Hart, Are There Any Natural Rights? (1955) 64 Philosophical Review
175; W. Sumner, The Moral Foundations of Rights (1987); C. Wellman, Real Rights (1995).
16
These points about inalienable rights are made by, e.g. N. MacCormick, Rights in Legislation in P. M. S.
Hacker and J. Raz (eds), Law, Morality and Society (1977) at 1989. Hart acknowledges the problem: see H. L. A.
Hart, Essays on Bentham (1982) at 1903.
100 Oxford Journal of Legal Studies VOL. 22

because the Control Thesis has a conditional formulation: If the accrual of the
benefit of R depends upon the performance of some action
, then . . . Now a
conditional of the form If p then q is true if its antecedent p is false. [Or at
least, that is the way I intend the Control Thesis to be interpreted.] Here the
antecedent p is the claim that: the accrual of the benefit of R depends upon the
performance of some action
. So the conditional formulation of the Control
Thesis ensures that, if the accrual of the benefit of a rightincluding an
inalienable rightdoes not depend on the performance of any action at all, then
it will come out as true that the right-holder has control over the benefit of the
right.)
Nevertheless, there are still dicult cases for the Control Thesis to deal with.
One major set of cases is generated by the operation of capacity and standing
rules. Consider the rights of minors. A minor has rights even though the standing
to enforce the rights is given not to the minor but to someone else, typically her
parent or guardian. And one interpretation of such cases is that they show that
minors can hold rights even though they do not control the benefits of the rights.
That would be a counter-example to the Control Thesis as it is currently
formulated.17
Any defence or refinement of the Control Thesis must address these cases.
But in order to set up the argument for the holding constraint, I propose here
simply to assume that the Control Thesis (or some suitable refinement of it
which preserves its basic intuition) is true. If this assumption is wrong, so much
the worse for the holding constraint.18
Second Premise. The second premise that we need to get from (1) to (2) is the
claim that (1) entails the following intermediate conclusion, which I will label
(C): An individual cannot have control over the benefit of a right which is
grounded in interests in a participatory good. (I will have a lot more to say
about the relation between (1) and (C) below.)

(ii) Putting it together

If we add these two additional premises, we have an argument that takes us
from (1) to (2). We start with:
(1) An individual cannot enjoy a participatory good on her own.
17
One way to deal with cases like this might be to add a third disjunct to the end of the Control Thesis, along
the following lines: or (c) x is a minor (or lacks capacity in some way) and
is an action which can be performed
by some other agent y, and although R gives y alone the power to decide whether or not she will
, ys decision
must reflect the best interests of x. The rights of minors would then not be a counter-example to the Control
Thesis, because powers that people have as parents or guardians of a child must be exercised in the best interests
of the child. The intuition behind this third disjunct is that there is a sense in which x has control over the benefits
of R if any acts distributing those benefits must, at the very least, reflect xs best interests. (Or is this too paternalistic
to be a case of control by x?) For more on the challenges for control requirements posed by childrens rights, see
N. MacCormick, Childrens Rights: A Test-Case for Theories of Rights in C. S. Nino (ed.), Rights (1992).
MacCormick sees childrens rights as a challenge for choice theories of rights. I see them as a challenge for any
theory which incorporates a control requirement.
18
Note, though, that even if the Control Thesis is not generally true, there may still be some kinds of rights the
holding of which requires having control over the benefits of the rights in roughly the sense specified in the Control
Thesis. If so, the main argument for the holding constraint that I set out below will at least apply to those rights.
SPRING 2002 Rights and Participatory Goods 101
Now according to our second premise, (1) is supposed to entail that:
(C) An individual cannot have control over the benefit of a right which is
grounded in interests in a participatory good.
But we know from our first premise (i.e. from the Control Thesis) that:
(3) An individual can hold a right only if it is possible for an individual to
have control over the benefit of the right.
And if we combine (C) and (3) we get the holding constraint:
(2) An individual cannot hold a right which is grounded in interests in a
participatory good.
I have accepted (1) and (at least for the purposes of this paper) the Control
Thesis, (3). Furthermore, (C) and (3) together do indeed entail (2). So if I want
to resist this argument for the holding constraint, the only thing left for me to
do is deny that (1) entails (C).

6. Assessing the Main Argument

The key to the main argument for the holding constraint is thus the claim that
(1) entails (C): the claim that, if an individual cannot enjoy a participatory good
on her own, then it is not possible for an individual to have control over the
benefit of a right which is grounded in interests in a participatory good.
This claim has some intuitive appeal. If a participatory good is not something
that I can enjoy on my own, and a certain right is grounded in interests in that
good, then will not the benefit that the right gives me be something that it is
not possible for me alone to have control over? If a participatory good is
constituted by the activity of a group of people, it might seem that only the
group itselfand not any single member of the groupcan ultimately have
control over the benefit of a right which is grounded in interests in that good.
Nevertheless, I think it is clear that (1) does not entail (C). I will begin with
some intuitive considerations, and then try to back up the intuitions with a few
examples.

A. Intuitive Considerations
My basic reason for denying that (1) entails (C) is that the two claims seem to
me to deal with quite distinct issues. Whereas (1) is a claim about the conditions
under which a certain kind of interest will be satisfied, (C) is a claim about the
kind of benefits that rights which are grounded in those interests can have. These
two issues seem to be largely independent of each other.
The claim in (1), that an individual cannot enjoy a participatory good on her
own, tells us something about the satisfaction conditions for interests in participatory
goods. (1) tells us that an individuals interest in a participatory good will be
102 Oxford Journal of Legal Studies VOL. 22

satisfied only in circumstances where other individuals also take certain sorts of
actions.
But this fact about the satisfaction conditions for interests in participatory
goods does not seem to entail anything in particular about the kinds of benefits
that rights which are grounded in those interests can haveor at least, it does
not seem to entail what (C) requires, namely, that those benefits be ones that it
is not possible for an individual to have control over. Intuitively, interests in
participatory goods can ground various dierent kinds of rights with various
dierent kinds of benefits, and it seems reasonable to think that at least some
of those rights will have benefits over which an individual can have control.

B. Defending the Intuitions

So far, my case for denying that (1) entails (C) rests on a general intuition: that
(1) tells us something about the satisfaction conditions for interests in participatory
goods, but that facts of that sort do not impose any obvious constraints on the
kinds of benefits that rights which are grounded in those interests can haveor
at least, no constraints of the kind required to make (C) true. One way to
support this intuition that (1) does not entail (C) is simply to show that even
though (1) is true, (C) is false. In this section I will try to do this by producing
some counter-examples to (C).
Recall what (C) says: it is not possible for an individual to have control over
the benefit of a right which is grounded in interests in a participatory good. To
produce a counter-example to this claim I need to show that, notwithstanding
what (1) tells us about the satisfaction conditions for interests in participatory
goods, there can be a right R which meets the following two criteria:
(i) R is grounded in interests in a participatory good; and
(ii) R has a benefit which it is possible for a single individual to have control
over, in the sense of control required by the Control Thesisi.e., for
any act
which must be performed in order for the benefit of R to accrue,
either (a) it is possible for an individual to perform
, or (b) it is possible
for an individual to have the power to demand that someone else perform

.
A right satisfying these two criteria will show that (C) is false notwithstanding
the truth of (1), and so will block the main argument for the holding constraint.
I will consider two categories of rights that seem to be promising candidates
for such counter-exampleswhat I will call actualization rights and choice-rights.
In each case, I will specify the kind of content that the right has, and then I will
ask whether a right with that sort of content satisfies the two criteria just
mentioned.
As we will see, one of the keys here is to be precise about what the benefits
of the relevant rights are. So before I begin, I need to make a quick comment
on how I am interpreting the notion of a benefit. Both categories of right that
SPRING 2002 Rights and Participatory Goods 103
I will discuss have the following feature: each right gives its holder x the power
to bring it about that a certain state of aairs p is the case. When dealing with
a right like this, we can distinguish between two interpretations of what the
benefit of the right is: (a) xs having the power to bring it about that p is the
case; or simply (b) ps being the case. Now it does not really matter which of
these interpretations we adopt, for on either view (though for dierent reasons)
x will count as having control over the benefit of the right, in the sense of
control required by the Control Thesis.19 The substantive question for us is
whether xthe agent that has control over the benefit of the rightcan be an
individual. Nevertheless, we should be consistent in how we use our terms, and
here I will opt for interpretation (b). As I will understand it, the benefit of a
right is that which the right gives its holder the power to bring about.

(i) Actualization rights

Suppose that a certain participatory good is constituted by the activity of a
certain group. What kinds of rights might be grounded in interests in such a
good? The first kind of right I want to consider is a right that the members of
the group actually engage in the activity constituting the goodor, as I will sometimes
put it, a right that the participatory good actually exist. For instance, where the
participatory good is constituted by a group speaking their native language, the
right will be that the group actually speak their native language. Call a right with
this sort of content an actualization right: it is a right to the actual existence of
a participatory good.
Actualization rights appear to satisfy our two criteria. First, it seems that
actualization rights to participatory goods can at least sometimes be grounded
in interests in those goods. Recall from section 3 the general idea behind the
grounding relation: a right is grounded in certain interests if the right is both
justified by those interests, and protects (or promotes or otherwise serves) the
interests to some degree. At least at first glance, there is no general reason to
think that actualization rights cannot stand in this relation to interests in
participatory goods.20 For example, there does not appear to be anything in-
coherent in the idea of an actualization right to speak a language which is both
justified by interests in speaking that language, and protects (or promotes or
otherwise serves) those interests to some degree.
Second, it also seems that the benefit of an actualization right is the kind of
thing that a single individual could have control over, in the sense of control
required by the Control Thesis. Here is why. The benefit of an actualization

19
On interpretation (b) this is straightforward: by hypothesis, there will be an action which x can perform which
will bring it about that the benefit of the right (here: ps being the case) accrues. On interpretation (a), the accrual
of the benefit of the right (here: xs having the power to bring it about that p is the case) arguably does not depend
upon the performance of any action at all. This benefit accrues just in case the right exists. But then, for reasons
having to do with the conditional formulation of the Control Thesis which I discussed in section 5(C), it will
again come out as true that x has control over the benefit of the right.
20
But cf. my discussion, later in this section, of what I call the conceptual problem with a certain kind of
actualization right.
104 Oxford Journal of Legal Studies VOL. 22

right is the actual existence of the participatory good in question; that is what
the right gives its holder the power to bring about. Now we know that the
existence of such a good requires action by more than one individual; that is
what (1) means when it says that a participatory good cannot be enjoyed by an
individual on her own. But of course, it will often be possible to give an individual
the power to demand that others perform those actions. For instance, although
it is true that I cannot speak my language unless other people speak it with me,
and thus that I cannot enjoy the good of speaking my language on my own, it
is perfectly possible to give me the power to demand that others speak my
language with me.
These considerations suggest that it is possible for an individual to have control
over the benefit of an actualization right, in the sense of control required by
the Control Thesis. That is, it is possible to give an individual the power to
demand the performance of those actions which are necessary in order for the
benefit of the actualization right to accrue. (Clause (b) of the Control Thesis is
the relevant one here.)
If these points are correct, then actualization rights satisfy our two criteria,
and they are thus counter-examples to (C). However, there are two potential
problems with appealing to actualization rights in this way.
The first problem is a normative one. Since it is always possible that some
members of the group will not want to participate in the activity constituting
the participatory good, actualization rights must be coercive in the following
sense: giving an individual an actualization right to a good must involve giving
that individual a power to force others to participate in the relevant activity.
(The actual forcing will be done by whoever it is that enforces the right, usually
the state; but it is the individuals exercise of the right which triggers that
enforcement.) The problem here is that, at least for some participatory goods,
it seems unlikely that any plausible moral theory will be able to justify such a
coercive right. For instance, suppose that participating in a certain religious or
cultural ceremony is a participatory good. It is easy to imagine cases where the
positive value of such a ceremony is outweighed by the disvalue of giving someone
a power to force people to participate in the ceremony. (Think of ceremonies
which involve doing harm to some of the participants.) In such cases a coercive
actualization right cannot be justified, and it therefore does not exist. For at
least some participatory goods, it thus seems unlikely that individuals have
actualization rights to those goods.
The second problem is a conceptual one, and it concerns whether it is really
true that actualization rights can be grounded in interests in participatory goods,
and hence satisfy our first criteria. To see the issue here, remember that a right
can be grounded in an interest only if the right protects (or promotes or otherwise
serves) the interest, at least to some degree. The question is whether actualization
rights to participatory goods do in fact protect interests in those goods?
The diculties are caused by the following interesting fact: the value of at
least some participatory goods appears to be conditional upon the relevant
SPRING 2002 Rights and Participatory Goods 105
individuals choosing freely to participate in the activity constituting the good. The
case of friendship provides an illustration. xs relationship with y has the value
of friendship only if x and y each choose freely to enter into it. Lose either of
those free choices and the relationship no longer has the value of friendship;
lose either of those free choices and the relationship is not a friendship at all. A
similar thing may apply to the value of speaking a native language or participating
in a religious ceremony, at least insofar as they are participatory goods.
Now, it seems that where the value of a participatory good G is subject to a
free-choice condition of this sort, it will not be the case that an actualization
right protects, even to a minimal degree, the interests that the right-holder has
in G.21 For, since actualization rights are coercive, what they give their right-
holders, at best, is a right to something that would have constituted G if all the
parties had freely chosen to participate. Consider the idea of my having an
actualization right to friendship. The idea of such a right does not make much
sense. In particular, the fact that the value of friendship is subject to a free-
choice condition means that it does not make much sense to think of such a
right as protecting my interest in friendship. For suppose that you do not want
to be my friend. Then what the right gives me, at best, is a right to force you
to have a relationship with me that would have constituted a friendship if you
had freely chosen to enter into it. That is just not a right that protects my interest
in friendship. For at least some participatory goods, therefore, the idea that an
interest in those goods will be protected by an actualization right to those goods
(indeed, the idea that there can be an actualization right to those goods) seems
conceptually out of order.
What is the eect of these two problems? So long as they do not aect all
actualization rights, they will not be fatal to my strategy. In order to generate a
counter-example to (C), and thus to block the main argument for the holding
constraint, all I need is one case of a right which satisfies our two criteria; and
actualization rights, despite these problems, may be able to deliver such a case.
But my position will be stronger if I can show that there are also other counter-
examples to (C). So let us turn to our second candidate.

(ii) Choice-rights
Suppose once again that a participatory good is constituted by the activity of a
certain group. Suppose also that an individual member x of the group has a
right with the following content: x has a right that each member of the group
(including x herself) have a choice of whether or not to participate in the activity
constituting the participatory good. We can think of this as a right to the existence
of whatever circumstances are necessary to enable each member of the group to
make the relevant choices. The choices in question are free choices: if each
member of the group has a choice of whether or not to participate in the activity

21
A similar point applies to the interests that other people have in G, but I will focus on the case of the right-
holder.
106 Oxford Journal of Legal Studies VOL. 22

constituting the good, then nobody has a right that any group member either
participate or refrain from participating in that activity.22
A right with this sort of content is a choice-right. It has a special, conditional
character. Why conditional? Well, if x has a choice-right of this sort, it is not
correct to describe x simply as having a right to participate in the activity
constituting the good. A right to participate in an activity requires having a right
that the activity take place, but xs choice-right does not give her such a right,
for it does not give her a right that anybody else actually participate in the
activity. (This is the major way in which choice-rights dier from actualization
rights.) What xs choice-right gives her, rather, is a right to participate in the
activity constituting the good if the other members of the group also choose to
participate in sucient numbers to make that activity viable. Another way to
put this point is to say that what is conditional is not xs having the right, but
rather the consequences of xs having the right. Whether or not xs (unconditionally)
having a choice-right results in her participating in the activity constituting
the participatory good is conditional upon how certain other people choose to
act.
Incorporating these points, we can define choice-rights more fully as follows:
Choice-rights. Where a participatory good G is constituted by the activity of a group
M, a right R held by an individual member x of M will be a choice-right to G if and
only if: R gives x a right to the existence of those circumstances which will enable each
member of M (including x) to participate in the activity constituting G if the other
members of M also choose to participate in sucient numbers to make that activity
viable.

To illustrate how this works, return to our language example. Speaking a native
language is a participatory good which is constituted by the activity of a certain
group. I am a member of the group, and I have an interest in speaking the
language. If I have a choice-right to this good, then what I have is: a right to the
existence of those circumstances which will enable me and each other member
of the group to speak our language if the other members of the group also choose
to do so in sucient numbers to make speaking our language a viable activity.
But neither I nor anybody else has a right that any member of the group either
speak or refrain from speaking our language.
Having defined choice-rights, let us now turn to assess them. Do choice-rights
satisfy our two criteria, and thus show that (C) is false? I think they do.
First, it seems that choice-rights to participatory goods, like actualization
rights, can at least sometimes be grounded in interests in those goods. There is
no general reason to think that a choice-right to a participatory goodsay a
choice-right to speak a language of the kind just outlinedcannot both be

22
Note: I am simply assuming at this stage that it is possible for an individual such as x to hold a right like
this, and thus, given the Control Thesis, that it is possible for an individual such as x to have control over the
benefit of the right. Obviously, since this is one of our two assessment criteria, I will have to ask later whether this
assumption is really coherent. (To anticipate: it is!)
SPRING 2002 Rights and Participatory Goods 107
justified by interests in that good, and protect (or promote or otherwise serve)
those interests to some degree.
Of course, the way that a choice-right protects interests in participatory goods
is very dierent from the way an actualization right protects them. Consider the
interests of the right-holder. Giving an individual x an actualization right to a
participatory good G protects xs interest in G by giving x the power to ensure
that G actually existsin other words, by giving x the power to ensure that
she gets to enjoy G, that her interest in G is actually satisfied.23 Choice-rights
do not go that far. If x has a choice-right to G, x does not thereby have the
power to ensure that G actually exists; nor, therefore, does x have the power to
ensure that she gets to enjoy G, that her interest in G is actually satisfied.
Whether those things happen depends upon how other members of the group
choose to act, and that is not something that xs choice-right gives her control
over.24
Nevertheless, xs having a choice-right to G surely does protect (or promote
or otherwise serve) xs interest in G to some degree. At the very least, xs having
a choice-right will remove some barriers to the participation by members of the
group in the activity constituting the goodand, hence, will remove some
barriers to the satisfaction of xs interest in the good. For example, it will reduce
to some degree the ability of people to interfere with the choices and actions of
members of the group. We might say that, other things being equal, xs having
a choice-right to G raises the chances that xs interest in G will be satisfied. All
this supports the view that choice-rights to participatory goods do protect (or
promote or otherwise serve) interests in those goods.
What about the second criterion? Is the benefit of a choice-right the kind
of thing that a single individual could have control over, in the sense of
control required by the Control Thesis? In my definition of choice-rights I
assumed this was the case. But that assumption was clearly correct. Let me
explain.
The benefit of a choice-right to a participatory good G is that which the right
gives its holder the power to bring about. Given my definition of choice-rights,
that benefit is the following:
(B) The existence of those circumstances which will enable each member of
the group M to participate in the activity constituting G if the other
members of M also choose to participate in sucient numbers to make
that activity viable.
Now, according to the Control Thesis, it will only be possible for a single
individual to have control over this benefit (B) if it is possible for a single
individual to either herself perform, or have the power to demand that others

23
This claim is subject to the qualification made in the previous section about participatory goods whose value
is subject to a free-choice condition.
24
The idea that a right which is grounded in an interest need not necessarily be a right to the full satisfaction
of that interest is not new. For related claims see Raz, above n 2 at 1701; Green, Two Views, above n 7 at 323.
108 Oxford Journal of Legal Studies VOL. 22

perform, whatever actions are necessary in order for (B) to accrue. Bringing
about (B) may require action by more than one person. But of course, it will
often be possible to give a single individual the power to demand that others
perform those actions.
Consider two examples. First, return to our language case. The benefit of a
choice-right to speak a language is the following: the existence of those cir-
cumstances which will enable each member of the language group to speak their
language if the other members of the group also choose to do so in sucient
numbers to make speaking that language a viable activity. Bringing about such
circumstances may require action by many peoplee.g. in order to give the
members of the group a meaningful choice to speak their language, it might be
necessary to establish schools teaching in that language. But of course, it is
possible to give an individual the power to demand that people take those
actionse.g. it is possible to give an individual the power to demand the
establishment of schools teaching in that language.
For a second example, consider again the case of a religious ceremony
which is a participatory good constituted by the activity of a certain group.
The benefit of a choice-right to participate in the religious ceremony is the
following: the existence of those circumstances which will enable each member
of the group to participate in the ceremony if the other members of the
group also choose to do so in sucient numbers to make the ceremony
viable. Bringing about such circumstances may require action by many
peoplee.g. it might be necessary for the state to prevent others from
interfering or intimidating the members of the group. But once again, it is
possible to give an individual the power to demand that people take those
actionse.g. it is possible to give an individual the power to demand that
the state prevent interference or intimidation.
What all this shows is that it is possible for an individual to have control over
the benefit of a choice-right, in the sense of control required by the Control
Thesis. That is, it is possible to give an individual the power to demand the
performance of those actions which are necessary in order for the benefit of the
choice-right to accrue. (Clause (b) of the Control Thesis is again the relevant
one.) So choice-rights satisfy the second as well as the first of our two criteria,
and they are therefore counter-examples to (C). It follows that (1) does not
entail (C), and that the main argument for the Control Thesis is therefore
blocked.

(iii) A comparison
The final point I want to make is about how choice-rights fare in relation to the
two problems that we saw actualization rights come up against. As I see it,
choice-rights are less vulnerable to the normative problem that actualization
rights face, and they avoid the conceptual problem altogether.
Recall that both these problems with actualization rights stem from the
particular way in which actualization rights are coercive: they give their holders
SPRING 2002 Rights and Participatory Goods 109
the power to force others to participate in the activity constituting the relevant
participatory good. Choice-rights are less vulnerable to these problems because
they are not coercive in the way actualization rights are. On the normative
problem of justifying the rights: in many cases, less will be required to justify
giving someone a choice-right to a good than will be required to justify giving
them an actualization right to that good. On the conceptual problem of whether
the rights really do protect interests in the relevant participatory good: since
having a choice-right does not give you the power to force anybody to participate
in the activity constituting the good, there is no danger of it violating any free-
choice condition on the value of the good.

C. Summary
Let me summarize the key points that I have made in sections 56. In section
5 I first noted that the main argument for the holding constraint is that (1)
entails (2): the fact that an individual cannot enjoy a participatory good on her
own means that it is not possible for an individual to hold a right which is
grounded in interests in a participatory good. I then suggested that this argument
ultimately turns on the claim that (1) entails (C): on the claim that, if an
individual cannot enjoy a participatory good on her own, then it is not possible
for an individual to have control over the benefit of a right which is grounded
in interests in a participatory good.
In section 6 I showed that (1) does not entail (C). The intuition I began with
was that (1) tells us something about the satisfaction conditions for interests in
participatory goods, but that facts of that sort do not constrain (in the way
required to make (C) true) the kind of benefit that rights which are grounded in
those interests can have. An interest in a participatory good can ground various
dierent kinds of rights with various dierent kinds of benefits, and at least some
of those rights will have benefits over which an individual can have control. Such
rights will be counter-examples to (C). I defended this intuition by considering
two counter-examples: actualization rights and choice-rights. Because of the
distinctive kind of content they have, choice-rights (and perhaps also actualization
rightsthough the case is less clear) provide examples of rights that are both
grounded in interests in participatory goods, and have benefits over which an
individual can have control. They thus show that (C) is false notwithstanding
the truth of (1). I conclude that the main argument for the holding constraint
fails. It does not establish that individuals cannot hold rights which are grounded
in interests in participatory goods.

7. Holding Rights and Exercising Rights

There is another possible argument for the holding constraint, what I will call
the Exercising Argument. I will finish by explaining this Exercising Argument, and
110 Oxford Journal of Legal Studies VOL. 22

then sketching two responses to it. Which response you prefer will depend on
your views on the relationship between holding and exercising a right.

A. The Exercising Argument

Everyone agrees that the following claim is true, since it follows from the
definition of a participatory good:
(1) An individual cannot enjoy a participatory good on her own.
In section 6 I rejected the main argument for thinking that (1) entails the holding
constraint:
(2) An individual cannot hold a right which is grounded in interests in a
participatory good.
But suppose you think that what (1) does entail is:
(E) An individual cannot exercise on her own any right which is grounded in
interests in a participatory good.
To illustrate this claim that (1) entails (E), return to our language example. The
fact that you cannot enjoy the good of speaking your native language on your
own (you need other people to speak it with you) is supposed to entail that any
right which is grounded in interests in speaking that language is not one that
you can exercise on your own.
Sounds reasonable enough. Or does it? In fact, the claim that (1) entails (E)
creates a problem. For suppose it is also true that:
(H) An individual cannot hold a right unless she can exercise the right on
her own.
Note that (E) and (H) together entail the holding constraint, (2). This means
that we have another argument for the holding constraint: that (1) entails (E),
and that (E) and (H) together entail (2). Call this the Exercising Argument. How
do we resist it?25

B. Two Responses
I will briefly sketch two ways of responding to the Exercising Argument. The
first response is prompted by some recent comments by Michael Hartney on
the relationship between holding and exercising a right. The second response
involves extending in a natural way the application of points I have already made

25
Note that in this Exercising Argument, the claim (H) is simply a way to get from (E) to (2). But of course,
(H) is itself an independent holding constraint. As we will see, Hartney rejects (H) while I am inclined to accept
it. I point this out to emphasize that although I reject the holding constraint which is the topic of this paper,
namely (2), I do not necessarily reject all holding constraints.
SPRING 2002 Rights and Participatory Goods 111
in section 6. I will also say something about why I think the second type of
response is better than Hartneys alternative.26
Hartneys suggestion seems to be that we should reject (H): we should break
the connection between the capacity of an individual to hold a right and the
capacity of an individual to exercise the right on her own.27 This would give us
a way to block the Exercising Argument: even if (1) entails (E), (E) does not
entail (2) because (H) is false. Even if a right grounded in interests in participatory
goods cannot be exercised by an individual on her own, that will not entail that
the individual cannot hold such a right, because an individual can hold a right
without having the capacity to exercise it on her own.
However, I find this strategy of rejecting (H) counter-intuitive. For it is very
natural to think that the capacity to hold a right and the capacity to exercise a
right do go together. Is not being able to exercise a right on ones own just part
of what it is to be the holder of a right? Note also that a rejection of (H) sits
uncomfortably with the Control Thesis. According to the Control Thesis, holding
a right requires having control over the benefit of the right; but is not the fact
that an individual has control over the benefit of a right a good reason to say
that she can exercise the right on her own?
Suppose then that Hartney is wrong to reject (H). It is true that an individual
cannot hold a right unless she can exercise that right on her own.28 How can we
resist the Exercising Argument now? The answer is obvious: deny that (1) entails
(E). And the argument that I would use to deny that (1) entails (E) is parallel
to the argument that I gave in section 6 for denying that (1) entails (C). I argued
in section 6 that (1) does not preclude an individual from having control over
the benefit of a right which is grounded in interests in a participatory good;
whether that is possible depends on what, precisely, the content of the right is.
So too, I now suggest, (1) does not preclude an individual from exercising on her
own a right which is grounded in interests in a participatory good; whether that
is possible also depends upon what, precisely, the content of the right is. (This
parallel is exactly what we would expect if (H) is true, and holding and exercising
go together.)

26
I say Hartneys alternative, but Hartney does not respond directly to the Exercising Argument. I do not
know whether he would endorse the use to which I put his comments.
27
Hartney, above n 7 at 310.
28
Accepting (H) has some interesting consequences. For instance, it is a quite common view that between
individual rights proper and group rights proper, there is a kind of hybrid right: a right which, though held by each
of several individuals, cannot be exercised by any one individual on her own. To mention just one of many
examples: some commentators have recently argued that the rights granted to members of minorities by Art. 27
of the International Covenant on Civil and Political Rights are not ordinary individual rights, but are rather hybrid
rights of this sort (see, e.g. J. Crawford, The Rights of Peoples: Peoples or Governments? in J. Crawford (ed.),
The Rights of Peoples (1992) at 60; P. Thornberry, International Law and the Rights of Minorities (1991) at 173; H. J.
Steiner and P. Alston, International Human Rights in Context (1996) at 9923). If (H) is true, as I suspect it is,
then this common view is confused: there are no such hybrid rights. An individual can have interests in goods
(e.g. participatory goods) which she cannot enjoy on her own. And an individual can hold rights (e.g. choice-
rights) which are grounded in and hence protect such interests. But individuals do not hold any rights which they
cannot exercise on their own. (If Art. 27 rights are not hybrid rights, what are they? I think the better view is that
they are just individual rights with a distinctive kind of content: they are what I have been calling conditional
choice-rights, or something very similar.)
112 Oxford Journal of Legal Studies VOL. 22

The details of this suggestion need to be filled in. But once that is done, I
think it will give us a way to deny that (1) entails (E), and thus to block the
Exercising Argument for (2). Consider choice-rights as a quick example. A
choice-right can be grounded in interests in a participatory good. Nevertheless,
if we formulate the content of the right precisely enough, we will see not merely
that: (i) an individual can have control over the benefit of the choice-right (which
is what we saw in section 6); but also that (ii) the choice-right can be exercised
by that individual on her own. After all, if an individual has control over the
benefit of a choice-right, then she can bring it about that the benefit of the right
accrues; and to bring that about arguably just is to exercise the right.
Of course, as we know, an individuals exercising a choice-right will not ensure
that she actually gets to enjoy the good, i.e. that her interest in the good will be
satisfied. The most it will ensure is the existence of those circumstances which
will enable her to participate in the activity constituting the good if others also
choose to participate in sucient numbers to make that activity viable. Her
exercising the right will merely (as I put it earlier) raise the chances that her
interest in the good will be satisfied. But there is nothing wrong with that. There
is no requirement that every exercise of a right be such as to ensure the satisfaction
of the interests that ground the right.29
To summarize. According to the Exercising Argument, the reason that (1)
entails the holding constraint, (2), is that (1) entails (E), and (E) and (H)
together entail (2). One way to resist this Exercising Argument is to follow
Hartney and reject (H). But I suspect that (H) is true, so if I still want to resist
the Exercising Argument, I must deny that (1) entails (E). But this looks like a
reasonable thing to do anyway, because the reasons I originally gave in section
6 for denying that (1) entails (C) look like they can be extended in a natural
way into reasons for denying that (1) entails (E).

8. Conclusion
The holding constraint says that a right which is grounded in interests in a
participatory good cannot be held by an individual. In addition to its implications
for the theory of group rights, this constraint raises important general issues
about the nature of rights and participatory goods. I think the constraint is false,
and in this paper I have rejected the two major arguments in its favour.
Both these arguments for the holding constraint begin with the (true) claim
that an individual cannot enjoy a participatory good on her own, i.e. that an
individuals interest in a participatory good cannot be satisfied unless more than
one individual engages in a certain kind of activity (this is the claim I labelled
(1)). The first argument infers from this that the benefit of a right which is
grounded in interests in a participatory good is not something over which an
individual can have control (this is the claim I labelled (C)); and the second

29
See n 24 above.
SPRING 2002 Rights and Participatory Goods 113
argument infers that any right which is grounded in interests in a participatory
good cannot be exercised by an individual on her own (this is the claim I labelled
(E)). If either of these inferences were correct then, given some other plausible
premises, the holding constraint would indeed follow. Unfortunately, for the
reasons I have explained, neither inference is correct. The two arguments
therefore fail to show that a right which is grounded in interests in a participatory
good cannot be held by an individual.