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1. Deﬁnition And Background
1.1 The Basic Logic Of Rights
The language of rights generally connotes claims of entitlement to certain goods. To assert that ‘I have a right …’ is to articulate a normative claim that certain actions should or should not be performed by other individuals, agencies of the state, or intermediate social institutions. As such, rights are related to, but diﬀerent from, preferences, interests, and needs. While rights are often invoked in the service of preferences and interests, only those rights which confer legal and/or moral authority that obligate others are enforceable by oﬃcial power. Hence, whereas the assertion of a preference connotes merely that ‘I want …,’ to assert a right is to declare that ‘I am entitled to … .’ Rights thus assume priority in the normative schemes of social ordering; they take priority—or ‘trump,’ in Ronald Dworkin’s memorable phrase—over preferences and interests. Rights similarly take precedence over needs in much the same way—but with one major diﬀerence: needs, unlike preferences, convey an objective status that can be validated by persons other than the claimants themselves. Claims to rights, also, are subject to third-party validation, but are, unlike the identiﬁcation of needs, typically initiated by individual agents acting on their own behalf (Waldron 1996).
Because rights constitute relationships between the bearers of rights and other persons or institutions, each person’s rights impose correlative duties on others. These duties may be negative in that they mandate noninterference or inaction by others, as in one’s claim of a right to liberty, privacy, or autonomy. Conversely, the duties imposed by rights may be positive in that others are called upon for action and assistance—as, for example, to ensure the fulﬁllment of contractual terms or to provide accessible facilities for voting in political elections. Rights may be primarily negative or primarily positive, but they may also involve elements of both.
Rights not only correlate with duties, they also extend by implication to all other similarly constituted relationships in society and are, thus, inclusive. This inclusiveness is the source of the frequent claim that rights are universalistic—i.e., that they can be claimed by, and impose duties on, all citizens within particular sovereign domains. Similarly, the exercise of rights typically confers responsibilities on the rights-bearer. For example, a person may have a right to drink alcohol and a right to drive a care, but these rights imply responsibilities for not engaging in both activities at once. Finally, rights are intrinsically linked to remedies. Thus, for example, not only does the right to equal treatment oblige others not to discriminate, but should discrimination occur, the right to equal treatment requires a remedy to compensate for or to correct the denial of a basic entitlement.
1.2 The Origin And Evolution Of Rights
The most widely recognized origin of rights is in European social contract theory dating back to the seventeenth century, and especially to John Locke’s classic Two Treatises on Government. From this work, rights emerged as a moral imperative that is found at the very core of several of the most important political documents in the modern age—including the United States Declaration of Independence as well as the Bill of Rights, and the French Declaration of the Rights of Man and Citizen. While the concept of rights thus dates back several hundred years, and has provided a founding principle for several longstanding liberal republican orders, it is in the second half of the twentieth century that the moral ethos of rights took on widespread signiﬁcance around the world. The persuasive power of rights developed, in part, in reaction to horrors of authoritarian states—Hitler’s genocide, Stalin’s purges, colonial repression and the like—and, in part, in recognition of deprivations suﬀered by ethnic and racial minorities, women, gays and lesbians, and other marginalized groups in nations throughout the world.
1.3 The Expanding Variety Of Rights Claims
The evolution and diﬀusion of rights through the centuries and around the globe has been boiled down by analysts to three separate stages, or generations, of rights claims.
1.3.1 First Generation Rights. These are closely linked to the rule of law and to liberal social contract theory; they are regularly found in the constitutions of liberal democratic regimes throughout the world, as well in such transnational legal orders as the European Convention on Human Rights. First generation, or classic rights, are embedded in the logic of both property ownership and in the law itself. On one hand, such rights tend toward the more negative pole, demarcate limits on interference by the state or other social actors, and turn on conceptions of liberty, privacy, due process, and the like. On the other hand, classic, ﬁrst generation rights also include more positive rights to political participation—to free speech and association, to vote, to run for oﬃce, etc.—and to fair treatment by others according to the principles of due process and equal treatment. These rights claims are the most widely recognized and the least contested in general, although speciﬁc constructions vary greatly.
1.3.2 Second Generation Rights. These can be traced to the social democratic traditions of Europe and have during the last century gained currency elsewhere—although not, most notably, in the United States. Second generation rights have to do primarily with entitlements to economic and social wellbeing of the sort formulated in Articles 22–27 of the Universal Declaration of Human Rights (1948)—including, for example, basic education, health care, minimum income, secure employment, workplace organization, food, housing, social security, and the like.
1.3.3 Third Generation Rights. These are newer in conception, diﬀerent in kind, and particularly controversial. Advocates of third generation rights seek to confer entitlements to collective or communal goods such as peace, security, a healthy environment, safe natural resources, animal welfare, and group self-determination or sovereignty, and thus seek to its rights to animal. The problematic posed by third generation rights will be addressed below.
2. Contemporary Philosophical Debates About Rights
The original conceptions of so-called liberal Western thinkers in the social contract tradition grounded rights in the theocratic logic of God’s divine plan and natural law. Later versions downplayed the divine hand but continued the emphasis on rights as self-evident and inalienable features sewn into the rational order of the natural universe or human nature. By the twentieth century, the philosophical foundations for rights became thoroughly secular—whether justiﬁed by various forms of moral rationality or appeals to proven historical eﬃcacy. It is within the tensions among these legitimating logics that many of the most important philosophical controversies about rights have been waged. We identify just a few of such persistent debates.
2.1 ‘Nonsense Built On Stilts’
This critique, that can be traced back at least to Bentham and continues today among critical ‘neorealist’ philosophers, turns on the recognition of rights indeterminacy. The core contention is that if rights are indeterminate and contingent, if they always are changing, and vary with context, then they really mean nothing at all and convey no real social power. Rights, it is argued, are simply moral ﬁctions that possess none of the objectivity, coherence, independence, and universality that philosophers, state oﬃcials, and popular culture assign to them. At best, rights are epiphenomenal reﬂections and rationalizations for relations grounded in other types of causal forces. Respondents to this position acknowledge that rights are social constructions, but the very fact that people believe that rights matter and act accordingly in interpersonal relations, often in the shadow of oﬃcial enforcement, demonstrates the power of rights. It is further argued that all moral discourses are indeterminate and that it is, therefore, inappropriate to dismiss rights discourses as meaningless because they are unstable and contestable. Indeed, according to this argument, the indeterminacy of rights discourse, as with moral discourse more generally, is desirable in providing a ﬂexible, dynamic, and pragmatic tradition for ordering social relations in just ways.
2.2 Who Has Rights?
The debate over the qualiﬁcations for rights-bearing is as old as the concept itself and has expanded among moral philosophers as speciﬁc rights claims themselves have proliferated. From the start, rights typically have been understood to be properties belonging to all individual human agents capable of claiming them. But it has been precisely these qualifying properties of rights bearers as human agents that have been deployed to limit the reach, and some might say to betray, the promise of rights. Thus, paradoxically, the claim that rights apply only to rational, disciplined, educated, human agents capable of self-government has been invoked to deny rights to children, women, ethnic and racial minorities, religious adherents, immigrants, and the like in many societies that generally recognize individual rights. Similarly, the principle that rights inherently presume individual human claimants has been central to contemporary arguments that third generation entitlements of animals and other nonhuman forms of life (e.g., trees), as well as nondivisible communal goods such as peace and a safe environment, are not suitable for rights claims. The philosophical skeptics argue that such claims lack theoretical coherence and might even undermine the social power of rights discourse itself. Such debates have generated extensive reconsideration about the very foundation of the meaning of rights as a social practice.
2.3 Do Rights Encourage Atomism, Egoism, And Selﬁshness?
The contention that rights practices encourage excessive individualism, egoism, and selﬁshness among citizens was perhaps most forcefully articulated by Karl Marx and is commonly asserted by moralists across the political spectrum today. Critics emphasize in particular the tendency of rights to celebrate the individual and thus to undermine citizens’ sense of responsibility for their actions, duties to others, and a shared commitment to ‘community.’
Theorists more favorably disposed to rights acknowledge that rights discourses presume, encourage, and protect individuals. Indeed, securing and advancing the exercise of individual citizen capacities for choice, action, self-development, and diversity against the harmful designs of other individuals, social groups, popular majorities, and the state has been the raison d’etre of rights as a moral concept from the start. At the same time, however, most theorists understand the rights of individuals in relational rather than insular terms. Rights practices sustain particular obligations that are reciprocal among citizens as well as a general tolerance and even respect for the human dignity of others. In Kant’s (1948, pp. 95–6) famous words, ‘Act in such a way that you always treat humanity, whether in your own person or in the person of another, always as an end and never simply as a means.’ Defenders thus argue that, far from undermining a sense of duty, rights support and enforce dutiful interaction among citizens. According to this way of thinking, rights connote a particular vision of community where individual agency is respected but balanced with conceptions of fairness, justice, and equal treatment for all. It follows that it is precisely the disregard for basic rights that encourages or permits unjust or exclusionary acts that are corrosive of community.
There is also a middle position in this debate. To begin with, it is widely recognized that some rights are more self-regarding than others. Marx’s powerful indictment, after all, was that it is property rights that encourage selﬁshness, materialism, and competition for dominance through capital ownership. As a consequence, he argued, it was the positive communal promise of political rights which was overwhelmed, thus reducing the promise of political solidarity to an illusion. The underlying point here is that critiques of rights that fail to distinguish among diﬀerent types of rights—within the ﬁrst generation as well as among the diﬀerent generations of rights concepts—are unconvincing to many moral theorists.
3. Jurisprudence And Legal Theory
Contemporary discourse on rights within jurisprudence and legal theory is driven by an eﬀort to identify a distinctively legal conception of rights. This discourse is organized around two foundational debates—pitting rights against democracy on the one hand, and natural law against legal positivism on the other. Historically, there have been profound and heated conﬂicts among the parties to these debates, but more recently a rapprochement has developed around the recognition that rights and law are mutually constitutive—that rights without the law are virtually unthinkable, as is law without rights. This convergence not only identiﬁes the core common ground of legal theory; it also reveals the distance that separates the legal theory of rights from the understanding of rights that is found in moral and political philosophy. Whereas philosophical understandings of rights reach well beyond the law in search of universal moral meaning, rights in legal theory are much more constrained—principally by way of the intrinsic connection in legal thought between rights and the institutional processes in which rights under law are embedded. In particular, legal theories of rights seek to specify and to justify the responsibility of courts and judges for resolving disputes over rights, and for policing the boundaries of legitimate rights claiming.
3.1 Legal Rights vs. Democracy
The problem of the legitimation of rights claims is especially troublesome to legal oﬃcials in democracies and republics, where majority will is understood to carry considerable authority. We noted above that rights, by their very nature, are intended to protect and advance individual entitlements that restrict the actions of others, including those of popular majorities. As such, rights—both in general, and in speciﬁc instances—are often condemned as counterdemocratic forces. Utilitarian theorists raise a parallel objection that begins with the assertion that rational public policy should provide the greatest good for the greatest number—thus giving considerable weight to the preferences of the majority. Rights are thus often challenged as costly obstacles to the development of democratic and eﬃcient (see below) social policy.
Other legal theorists respond that rights do not thwart so much as give structure to utilitarian policy calculation, by assigning higher values to certain basic entitlements—especially those concerning protection for individual freedom and dignity—than to other competing considerations. Consequently, securing rights may impose costs on particular social goals, but these costs are arguably incurred in order to sustain larger, enduring social commitments. Likewise, it is argued that rights claims do not absolutely throttle democratic majorities or elected oﬃcials; rather, rights claims tend only to place speciﬁc, limited restrictions on particular policy actions that defy core social values and protection for individuals. Moreover, it is important to underline that many types of rights advance—indeed, are actually essential to—the democratic process. Such entitlements include, at the least, protections for dissenting speech, political association, free elections, due process, and basic public education.
There is no simple way out of this debate. While it may well be true that rights in general provide sustenance to democratic polities, particular rights constructions certainly do, and indeed are intended to, defy the will of elected oﬃcials and popular majorities. Hence the enduring challenge for judicial authorities is to justify by legal argument their speciﬁc rights constructions.
3.2 Rights And Justice
Historically, a divisive debate in legal theory between positivism and natural law has pitted a theory of law that recognizes little in common between morality and law against a conception of law as being inseparable from morality. The latter is virtually indistinguishable from the moral philosophy of rights discussed earlier, and represented by the work of Locke and Kant among others. The former is rooted in analytic philosophy and in a logical positivism that eschewed the search for universal truths. During the late twentieth century the gap between legal positivists and natural law theorists narrowed (but was by no means closed) by the emergence of a widespread agreement on a least-common-denominator conception of justice as the ‘right to have rights.’ According to this way of thinking, the guarantees associated with rights are conﬁned to assuring predictability, reciprocity, and impartiality in the application of the law. What remains unresolved in the debate between theorists of natural law and legal positivism is whether justice, as thus deﬁned, is the diﬀerentiating element of legal right, or only a quality that tends to be closely associated with legal rights.
While many jurists have not reached out to the broader realms of political and moral philosophy, Ronald Dworkin, (Dworkin 1977) at the end of the twentieth century the most prominent legal theorist of rights, has done so. At the core of his analysis is the distinction between policy and principle. Whereas policy is driven by utility, principle, the deﬁning element of law, is to be observed, not because it will advance or secure an economic, political, or situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality. In thus linking law to principle, and principle to justice, Dworkin identiﬁes himself with the relatively noncontroversial common ground between positivism and (neo)natural law. On the other hand, by introducing ‘some other dimension of morality’ he clearly breaks new ground. For Dworkin, it is constitutions and constitutional rights that ‘fuse legal and moral issues’ (Dworkin 1977, p. 185). Constitutions thus provide in addition to the right to have rights, particular substantive rights as well.
For Dworkin, then, rights are inextricably linked not only to the foundational elements of positive law but, at least in their political and constitutional incarnation, to the foundational elements of the state. In this sense Dworkin can be seen as a kind of transitional ﬁgure among legal theorists, reaching out as he does to moral and political philosophy and incorporating them into his analysis of rights constructions by judges and other state oﬃcials. But unlike those of moral and political philosophers, Dworkin’s theory of rights is embedded in, and inextricably linked via principle to, what is distinctively legal. Moral philosophy thus becomes an adjunct to the law and is, in eﬀect, put at the disposal of the law, as a source of principle. In this sense, Dworkin’s theory of rights returns to the starting point and, indeed, to the cornerstone of jurisprudence and legal theory, that is, it is a search for what is uniquely legal, as opposed to moral, ethical, or political.
4. Empirical Social Science Studies Of Rights Practice
Whereas philosophic and jurisprudential inquiries into rights tend to be normative and abstract, social science research regarding rights practices is explanatory and empirical. Moreover, in the social sciences rights are treated less as moral entitlements of historical persons than as contingent resources that are mobilized both by individuals in everyday life, and by organized interests in political advocacy. Rights are not viewed as ‘above politics’ and power so much as constitutive of political activity and power relations. The primary objective of the social sciences thus is to assess the value of rights as resources, and to explain variation in the value of rights from time to time and from place to place. To do so, social scientists shift the locus of rights inquiry from formal systems of logic and idealized institutions to inductively organized research on rights in actual institutional settings, everyday life, and political advocacy.
4.1 Rights And Everyday Disputing
There has been a rapidly expanding scholarly literature on the ordinary disputing practices of citizens, especially in the United States but increasingly around the world. Many studies of ‘ordinary’ (non-elite) individual citizens in the US suggest that rights matter a great deal, and that these individuals are not hesitant to assert them. Indeed, some scholars demonstrate that lay people, more so than judges, clerks, police, and other legal authorities, act on the premise and the expectation that the legal system exists to protect rights. Studies from other polities around the globe have also found some evidence for this generalization. One of the most interesting ﬁndings of Ewick and Silbey (1998) is that ordinary, non-elite citizens in the US can, moreover, relate to rights in ﬂexible, creative, and complex ways, entertaining several conﬂicting notions at once. Interviewees in their study could view rights instrumentally as malleable rules of a game, authoritatively as an objective source of valid law, and skeptically as a burden that must be endured, evaded, or resisted.
Other studies qualify or challenge assumptions about the salience of rights. Research on the disputes of individuals suggests, for example, that Americans and others often refrain from asserting their rights; many studies document a widespread reluctance to seek redress when rights are violated and entitlements denied. This is especially the case among lower-income and minority citizens. Moreover, some studies ﬁnd evidence of considerable cultural biases and popular pressure against rights claiming, at least through formal adversarial channels, even in allegedly ‘rights obsessed’ cultures such as the US. Patterns of individual practice are thus complex, contradictory, counterintuitive, and often defy generalization within, much less beyond, the US context.
4.2 The Politics Of Rights: Mobilizing Rights In Political Of Advocacy
The value of rights as a political resource is heavily debated within the social science literature. The most stringent critics of rights strategies claim that to deploy rights is at best ineﬀectual, and at worst counterproductive. Some studies suggest that rights litigation had no more than negligible eﬀect on policy outcomes. According to realist critics only political power built around electoral coalitions and inﬂuential interests can bring about changes in well-established policies and practices. Other scholars demonstrate that rights-based practices often do intrude into policy processes, but with the unfortunate consequence of making these processes rigid and ineﬃcient.
There is, however, a substantial body of research that suggests rights strategies can make meaningful contributions to a transformative politics—albeit in complex, contingent, and unpredictable ways. This research does not so much invalidate the ﬁndings of critics as shift the focus and the standards by which rights strategies are to be judged. Instead of concentrating exclusively on the direct eﬀect of courtarticulated rights, their indirect and constitutive eﬀects are explored and assessed. Moreover, in this research, the criterion for judging rights strategies shifts from policy eﬃciency to social equity—with the salience of this latter criterion most compellingly articulated in the work of critical race and critical gender theorists.
Especially in the United States, where much of the available research has been conducted, the indirect and transformative potential of a ‘politics of rights’ (Scheingold 1974) has been persuasively demonstrated. Just as rights have a constitutive impact on individual disputants, so too have the connotations of entitlement associated with rights had a mobilizing impact on social movements for pay equity, disability rights, and animal rights. Insofar as a need or a grievance can be articulated as a legal or constitutional right, expectations can be altered, quiescence overcome, and a politics of rights generated. Note that this research focuses very much on the discursive power of rights to constitute social and political life. Moreover, despite their liberal connotations and associations, rights can also be deployed on behalf of substantive agendas that span the political spectrum.
Despite all of their persuasive power, however, rights alone secure very little. Nor is rights mobilization a matter of spontaneous combustion. The constitutive power of rights depends on deploying rights shrewdly, in conjunction with other political resources—including shrewd leadership working in combination with established organizations like churches (civil rights), labor unions (pay equity), and other kinds of social-action organizations. Even then a transformative politics does not necessarily follow. Political mobilization may, for example, generate counter mobilization (the abortion rights vs. right-to- life movements). But as the struggle over abortion clearly demonstrates, rights do matter, and a well-executed strategy of rights can at the very least destabilize the political arena—thus creating opportunities that were previously foreclosed. In sum, the increasing body of empirical research on rights advocacy in a variety of settings underscores the variable, contingent, and often-contradictory implications of a politics of rights.
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