Theoretical and Empirical Studies of Rights [1 ed.] 9780754625810

Table of contents :
Cover
Half Title
Title Page
Copyright Page
Table of Contents
Acknowledgements
Series Preface
Dedication
Introduction
Part I Historical and Philosophical Perspectives on Theories of Rights
1 United Nations (1948), 'Universal Declaration of Human Rights', UN website at www.un.org, pp. 71-79
2 John Locke (1967), 'Of Property', in John Locke: Second Treatise of Government, in T.P. Peardon (ed), London: Cambridge University Press, pp. 16-30
3 Jürgen Habermas (2001), 'Constitutional Democracy: A Paradoxical Union of Contradictory Principles?', Political Theory, 29, pp. 766-81
4 Ronald M. Dworkin (1967), 'The Model of Rules', University of Chicago Law Review, 35, pp. 14-46
Part II Conflicts of and about Rights
5 Charles A. Reich (1964), 'The New Property', Yale Law Journal, 73, pp. 733-87
6 Jeremy Waldron (1989), 'Rights in Conflict', Ethics, 99, pp. 503-19
7 Martha Minow (1987), 'Interpreting Rights: An Essay for Robert Cover', Yale Law Journal, 96, pp. 1860-1915
8 Mark Tushnet (1984), 'An Essay on Rights', Texas Law Review, 62, pp. 1363-403
Part III Rights in Empirical Relief
9 William L.F. Felstiner, Richard L. Abel and Austin Sarat (1980), 'The Emergence and Transformation of Disputes: Naming, Blaming, Claiming ...', Law and Society Review, 15, pp. 631-54, 883-910
Rights and Individuals
10 David M. Engel and Frank W. Munger (1996), 'Rights, Remembrance, and the Reconciliation of Difference', Law and Society Review, 30, pp. 7-53.
11 Laura Beth Nielsen (2000), 'Situating Legal Consciousness: Experiences and Attitudes of Ordinary Citizens about Law and Street Harassment', Law and Society Review, 34, pp. 1055-90.
Rights in Organizations
12 Lauren B. Edelman, Howard S. Erlanger and John Lande (1993), 'Internal Dispute Resolution: The Transformation of Civil Rights in the Workplace', Law and Society Review, 27, pp. 497-534.
13 Catherine R. Albiston (2005), 'Bargaining in the Shadow of Social Institutions: Competing Discourses and Social Change in Workplace Mobilization of Civil Rights', Law and Society Review, 39, pp. 11-49.
Rights in Social Movements
14 Michael W. McCann (1993), 'Reform Litigation on Trial', Law and Social Inquiry, 17, pp. 715-43.
15 Gerald N. Rosenberg (1993), 'Hollow Hopes and Other Aspirations: A Reply to Feeley and McCann', Law and Social Inquiry, 17, pp. 761-78.
Rights in Global Contexts
16 Katharina C. Heyer (2002), 'The ADA on the Road: Disability Rights in Germany', Law and Social Inquiry, 27, pp. 723-62.
17 Sally Engle Merry (2001), 'Rights, Religion, and Community: Approaches to Violence Against Women in the Context of Globalization', Law and Society Review, 35, pp. 39-88.
Name Index

Citation preview

Theoretical and Empirical Studies of Rights

The International Library of Essays in Law and Society Series Editor: Austin Sarat Titles in the Series: Law and Religion Gad Barzilai

Law and Social Movements Michael McCann

Police and Policing Law Jeannine Bell

Colonial and Post-Colonial Law Sally Merry

Law and Society Approaches to Cyberspace Paul Schiff Berman

Social Science in Law Elizabeth Mertz

Law and Families Susan B. Boyd and Helen Rhoades

Sexuality and Identity Leslie J. Moran

Rhetoric of Law Marianne Constable and Felipe Gutterriez

Law and Poverty Frank Munger

Law in Social Theory Roger Cotterrell

Theoretical and Empirical Studies of Rights Laura Beth Nielsen

Ethnography and Law Eve Darian-Smith

Governing Risks Pat 0 'Malley

International Law and Society Laura Dickinson

Lawyers and the Legal Profession, Volumes I and 11 Tanina Rostain

Legal Lives of Private Organizations Lauren Edelman and Mark C. Suchman

Capital Punishment, Volumes I and 11 Austin Sarat

Courts and Judges Lee Epstein

Legality and Democracy Stuart A. Scheingold

Consciousness and Ideology Patricia Ewick

The Law and Society Canon Carroll Seron

Prosecutors and Prosecution Usa Frohmann

Popular Culture and Law Richard K. Sherwin

Intellectual Property William T. Gallagher

Law and Science Susan Silbey

Human Rights, Law and Society Usa Hajjar

Immigration Susan Sterett

Race, Law and Society fan Haney L6pez

Gender and Feminist Theory in Law and Society Madhavi Sunder

The Jury System Valerie Hans

Procedural Justice, Volumes I and 11 Tom R. Tyler

Regulation and Regulatory Processes Robert Kagan and Cary Coglianese

Trials Martha Merrill Umphrey

Crime and Criminal Justice William T. Lyons, Jr.

Theoretical and Empirical Studies of Rights

Edited by

Laura Beth Nielsen American Bar Foundation & Northwestern University, USA

First published 2007 by Ashgate Publishing Published 2016 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 Third Avenue, New York, NY 10017, USA

Routledge is an imprint ofthe Taylor & Francis Group, an informa business Copyright © Laura Beth Nielsen 2007. For copyright of individual articles please refer to the Acknowledgements. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data Theoretical and empirical studies of rights. - (The international library of essays in law and society) I.Human rights I.Nielsen, Laura Beth 341.4'8 Library of Congress Cataloging-in-Publication Data Theoretical and empirical studies of rightsI edited by Laura Beth Nielsen. p. cm. - (The international library of essays in law and society) Includes bibliographical references. ISBN-13: 978-0-7546-2581-0 (alk. paper) ISBN-lO: 0-7546-2581-8 (hardback: alk. paper) 1. Human rights. I Nielsen, Laura Beth JC571.T4472006 323.01-dc22 2006050083 ISBN: 9780754625810 (hbk)

Contents Acknowledgements Series Preface Introduction PART I

VII IX

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HISTORICAL AND PHILOSOPHICAL PERSPECTIVES ON THEORIES OF RIGHTS

1

United Nations (1948), 'Universal Declaration of Human Rights', UN website at www.un.org, pp. 71-79. 3 2 John Locke (1967), 'Of Property', in John Locke: Second Treatise of Government, in T.P. Peardon (ed), London: Cambridge University Press, pp. 16-30. 13 3 JUrgen Habermas (2001), 'Constitutional Democracy: A Paradoxical Union of Contradictory Principles?', Political Theory, 29, pp. 766-81. 29 4 Ronald M. Dworkin (1967), 'The Model of Rules', University of Chicago Law Review, 35, pp. 14-46. 45

PART 11

CONFLICTS OF AND ABOUT RIGHTS

5 Charles A. Reich (1964), 'The New Property', Yale Law Journal, 73, pp. 733-87. 6 Jeremy Waldron (1989), 'Rights in Conflict', Ethics, 99, pp. 503-19. 7 Martha Minow (1987), 'Interpreting Rights: An Essay for Robert Cover', Yale Law Journal, 96, pp. 1860-1915. 8 Mark Tushnet (1984), 'An Essay on Rights', Texas Law Review, 62, pp. 1363-403.

81 137 155 211

PART III RIGHTS IN EMPIRICAL RELIEF

9 WiIIiam L.F. Felstiner, Richard L. Abel and Austin Sarat (1980), 'The Emergence and Transformation of Disputes: Naming, Blaming, Claiming ... ', Law and Society Review, 15, pp. 631-54, 883-910. Rights and Individuals 10 David M. Engel and Frank W. Munger (1996), 'Rights, Remembrance, and the Reconciliation of Difference', Law and Society Review, 30, pp. 7-53. 11 Laura Beth Nielsen (2000), 'Situating Legal Consciousness: Experiences and Attitudes of Ordinary Citizens about Law and Street Harassment', Law and Society Review, 34, pp. 1055-90.

255

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357

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Rights in Organizations 12 Lauren B. Edelman, Howard S. Erlanger and John Lande (1993), 'Internal Dispute Resolution: The Transformation of Civil Rights in the Workplace', Law and Society Review, 27, pp. 497-534. 13 Catherine R. Albiston (2005), 'Bargaining in the Shadow of Social Institutions: Competing Discourses and Social Change in Workplace Mobilization of Civil Rights', Law and Society Review, 39, pp. 11-49. Rights in Social Movements 14 Michael W. McCann (1993), 'Reform Litigation on Trial', Law and Social Inquiry, 17, pp. 715-43. 15 Gerald N. Rosenberg (1993), 'Hollow Hopes and Other Aspirations: A Reply to Feeley and McCann', Law and Social Inquiry, 17, pp. 761-78.

395

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475 505

Rights in Global Contexts 16 Katharina C. Heyer (2002), 'The ADA on the Road: Disability Rights in Germany', Law and Social Inquiry, 27, pp. 723-62. 17 Sally Engle Merry (2001), 'Rights, Religion, and Community: Approaches to Violence Against Women in the Context of Globalization', Law and Society Review, 35, pp. 39-88.

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Name Index

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525

Acknowledgements It is no small task to try to determine the 12 or 14 most important essays in any area, but especially in law and society which includes not just the law and society canon, but also much work in the disciplines of political science, sociology, law, history and psychology to name just a few. As such, I solicited input from a number of helpful colleagues. Austin Sarat, Bonnie Honig, Robert Nelson, Catherine (KT) Albiston, Vicky Saker Woeste and Carol Heimer had endless conversations and e-mail exchanges with me about what to include in this volume and, even more difficult, what to exclude when I was over my page limit. I finished the volume while at the Center for Advanced Study in the Behavioral Sciences where I was able to elicit input from my colleagues, Lauren Edelman, Catherine MacKinnon, Rob Parker, Ceclia Ridgeway and Tali Mendelberg. The encouragement, advice and support provided at every step in the process by Austin Sarat, the editor of the series, proved invaluable. Thank you all for your generous help. I had the incredible luxury of editing this book in part at the American Bar Foundation where I am ably assisted by Lucinda Underwood and Lila Stromer. At the Center for Advanced Study in the Behavioral Sciences, I was supported by librarian Tricia Soto who can find any book, any where, any time. Ellen Berrey and Miriam Parrish provided excellent research assistance. As always, Eric, Zach, and Skyler support me in every way they can. I owe you all a debt of gratitude too large to repay.

Laura Beth Nielsen The editor and publishers wish to thank the following for permission to use copyright material. Blackwell Publishing Limited for the essays: Michael W. McCann (1993), 'Reform Litigation on Trial', Law and Social Inquiry, 17, pp. 715--43. Copyright © 1993 American Bar Foundation; Gerald N. Rosenberg (1993), 'Hollow Hopes and Other Aspirations: A Reply to Feeley and McCann', Law and Social Inquiry, 17, pp. 761-78. Copyright © 1993 American Bar Foundation; Katharina C. Heyer (2002), 'The ADA on the Road: Disability Rights in Germany', Law and Social Inquiry, 27, pp. 723--62. Copyright © 2002 American Bar Foundation; William L.F. Felstiner, Richard L. Abel and Austin Sarat (1980), 'The Emergence and Transformation of Disputes: Naming, Blaming, Claiming ... ', Law and Society Review, 15, pp. 631-54, 883-910. Copyright © 2001 Proquest Information and Learning Company; Laura Beth Nielsen (2000), 'Situating Legal Consciousness: Experiences and Attitudes of Ordinary Citizens about Law and Street Harassment', Law and Society Review, 34, pp. 105590. Copyright © 2000 Law and Society Association; Lauren B. Edelman, Howard S. Erlanger and John Lande (1993), 'Internal Dispute Resolution: The Transformation of Civil Rights in the Workplace', Law and Society Review, 27, pp. 497-534. Copyright © 2003 Proquest Information Learning Company; Catherine R. Albiston (2005), 'Bargaining in the Shadow of

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Social Institutions: Competing Discourses and Social Change in Workplace Mobilization of Civil Rights', Law and Society Review, 39, pp. 11--49. Copyright © 2005 Law and Society Association; Sally Engle Merry (2001), 'Rights, Religion, and Community: Approaches to Violence Against Women in the Context of Globalization', Law and Society Review, 35, pp. 39-88. Copyright © 2001 Law Society Association; David M. Engel and Frank W. Munger (1996), 'Rights, Remembrance, and the Reconciliation of Difference', Law and Society Review, 30, pp. 7-53. Copyright © 1996 Law and Society Association. Copyright Clearance Center for the essay: Ronald M. Dworkin (1967), 'The Model of Rules', University o{Chicago Law Review, 35, pp. 14--46. Copyright © 1967 University of Chicago. Sage Publications Inc. for the essay: JQrgen Habermas (200 I), 'Constitutional Democracy: A Paradoxical Union of Contradictory Principles?', Political Theory, 29, pp. 766-81. Copyright © 200 I Sage Publications. United Nations Publications for the essay: United Nations (1948), 'Universal Declaration of Human Rights', UN website at www.un.org, pp. 71-79. University of Chicago Press for the essay: Jeremy Waldron (1989), 'Rights in Conflict', Ethics, 99, pp. 503-19. Copyright © 1989 University of Chicago Press. Yale Law Journal for the essay: Martha Minow (1987), 'Interpreting Rights: An Essay for Robert Cover', Yale Law Journal, 96, pp. 1860-1915. Every effort has been made to trace all the copyright holders, but if any have been inadvertently overlooked the publishers will be pleased to make the necessary arrangement at the first opportunity.

Series Preface The International Library ofEssays in Law and Society is designed to provide a broad overview of this important field of interdisciplinary inquiry. Titles in the series will provide access to the best existing scholarship on a wide variety of subjects integral to the understanding of how legal institutions work in and through social arrangements. They collect and synthesize research published in the leading journals of the law and society field. Taken together, these volumes show the richness and complexity of inquiry into law's social life. Each volume is edited by a recognized expert who has selected a range of scholarship designed to illustrate the most important questions, theoretical approaches, and methods in her/his area of expertise. Each has written an introductory essay which both outlines those questions, approaches, and methods and provides a distinctive analysis of the scholarship presented in the book. Each was asked to identify approximately 20 pieces of work for inclusion in their volume. This has necessitated hard choices since law and society inquiry is vibrant and flourishing. The International Library ofEssays in Law and Society brings together scholars representing different disciplinary traditions and working in different cultural contexts. Since law and society is itself an international field of inquiry it is appropriate that the editors of the volumes in this series come from many different nations and academic contexts. The work of the editors both charts a tradition and opens up new questions. It is my hope that this work will provide a valuable resource for longtime practitioners of law and society scholarship and newcomers to the field.

AUSTIN SARAT William Nelson Cromwell Professor ofJurisprudence and Political Science Amherst College

This book honours the Legal Studies Program at the University of California, Santa Cruz and those who were kind enough to teach me about the law, including Jeremy Elkins, Robert Meister, Richard Wasserstrom, Craig Reinerman and, especially, my dear friend Brad Bugdanowitz.

Introduction The central premise of this volume is that comprehending the most basic functions ofrights requires the empirical study of rights consciousness and claiming behaviour (Sumiller, 1988; Surke, 2002; McCann, 1994; McCann and March 1996; Nielsen, 2004). This perspective, which is squarely within the law and society tradition,! places the study of ordinary citizens' understandings of rights, and what actions they take based on that knowledge, at the forefront of an empirical research agenda. Empirically grounded, theoretically informed theories of rights consciousness and claiming have important implications for law's capacity to achieve social change and can lead to a better understanding of how rights can and should operate in a social and legal system. Political theorists occupy much of the field of rights scholarship and there is much to be learned from the work in this area. As such, the volume includes selected essays about rights by political theorists and historians, but it is important to realize that different disciplines have their own canons of rights literature. The task of this volume is to provide the law and society perspective on the literature of rights, which is necessarily an interdisciplinary approach. There is a strong tradition of empirical scholarship on rights in law and society, which centrally focuses on the social movements and political processes that give rise to rights (Kostiner, 2003; McCann, 1994; Meyer and Staggenborg, 1996), the processes by which people come to understand they enjoy a right (Albiston, Chapter 13, this volume; Sumiller, 1988; Felstiner, Abel and Sarat, Chapter 9, this volume; Galanter, 1983), the decision to invoke the right either formally or informally (Macaulay, 1963; Mnookin and Kornhauser, 1979) and the organizational and institutional constraints and opportunities for exercising rights (Albiston, Chapter 13, this volume; Edelman, 1992; Edelman, 2002; Edelman, Erlanger and Abraham, 1992; Edelman, Erlanger and Lande, 1993; Edelman, Fuller and Mara-Drieta, 2001; Edelman and Suchman, 1997). The content of rights varies widely and can include things like the right to be free from government interference on certain matters (like the right to free speech), the right to enjoy employment opportunity without invidious bias based on race, gender or sexual orientation (to name just a few), the right to attain, control and protect privately-held property and capital, the right to full political participation (like voting) and so on. Although substantively varied, rights share some interesting commonalities. The liberal legal understanding of rights posits that they are inviolable and absolute. This understanding, while idealized, is a source of the power of rights. If a right cannot be infringed in the way in which other interests may be, then protectors of various interests will benefit if their interest can be transformed into a 'right'.

1

By law and society tradition, I mean the field oflaw and society, of which the central intellectual organization is the Law and Society Association and the central journal is the Law & Society Review. There are, however, other intellectual organizations and publications including Law, Culture, and Humanities (including the journal of the same name), and Law and Social Inquiry: Journal of the American Bar Foundation.

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This Introduction and the volume in which it appears begin with a discussion of historical and philosophical perspectives on rights and the fundamental questions asked by rights theorists. Arguing that both political theorists and social reformers will benefit from an empirical understanding of how rights work, I identify some important empirical questions that remain unanswered by political theory. Although there have been efforts to bring together rights theorists with other academic disciplines, my purpose is to demonstrate that empirical social scientists have made great strides towards understanding how rights operate in the social world. The following sections of this introduction is to focus not only on understanding rights as socially constructed categories rather than as political absolutes, but also, highlighting what we know about how rights are used on empirical research on how individuals come to understand that they have a right and what they choose to do about it within organizational and institutional constraints. Historical and Philosophical Perspectives on Theories of Rights

Where do rights come from? What kind of claims do individuals have to particular rights? How have scholars thought about what rights are? What substantive areas are protected by rights? Who enjoys rights? The essays in tPart I of this volume were selected to demonstrate a few of the different perspectives about the origins of rights. Part I of the volume begins with the Universal Declaration of Human Rights, adopted on 10 December 1948 by the General Assembly of the United Nations (Chapter 1). The Declaration of Human Rights is an historical artefact and an enumeration of an idealized set of rights to which people, at least in theory, are entitled. It also provides a clear statement of the idea that rights inhere in individuals by virtue of birth, stating, 'All human beings are born free and equal in dignity and rights' (Article 1). The Declaration of Human Rights asserts that the enumerated rights belong to individuals by virtue of their being human. John Locke, the classic Enlightenment theorist, articulates a theory oflegitimate government and the rights that the government should be established to protect in 'Of Property' from the Second Treatise of Government (Chapter 2). Unlike the UN Declaration, Locke's essay questions the origin of rights themselves. Locke asserts that the earth is shared equally by all men by virtue of God granting all men the earth equally. For Locke, then, natural rights are endowed by God. Prior to civil government men exist in a state of nature in which they will unequally acquire capital; this in turn leads to violations of natural law (including what we would think of as crimes), requiring men to unite to form a civil society for the purpose of protecting property. As property is something that Locke believes should be protected, governments should be formed to protect property rights. When government forms to perform this task, rights initially conferred by God are protected by the state. Aside from the functions necessary to facilitate order and protect property, Locke believes that men still possess the natural right to be free from government interference. Humans should enjoy freedoms subject to the limitations of government only to protect 'life, liberty, and property'. In the UN Declaration, and for political theorists like Locke and others, rights are something that we are born with (see Langdell, 1900; Locke, Chapter 2). In contrast the essay by JUrgen Habermas (Chapter 3) represents a fundamental departure because, for Haberm as, rights emerge as part of, and at the same time as, democratic political processes. Habermas is just one of the political theorists who argue that rights arise from the political and governmental

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processes in which they are embedded, but is perhaps the scholar most closely identified with this perspective. Notwithstanding a more socially constructed notion of rights, Habermas argues that rights are a particular type of claim to legitimate authority and that they still occupy an elevated position among claims of entitlement. In his critique of positivism, 'The Model of Rules' (Chapter 4), Ronald Dworkin breaks this trend by arguing that a positivist conception of law and rights is stilted. The positivists' position (he mentions H.L.A. Hart and John Austin as exemplars) is that 'to say he has a legal right, or has a legal power of some sort ... is to assert, in a shorthand way, that others have actual or hypothetical legal obligations to act or not to act in certain ways touching him' (pp. 48--49). As such, Dworkin opens a new line of inquiry into rights as constructed social processes - an idea taken up by the next set of essays in the volume. Conflicts of and about Rights

Contrary to the idea ofrights as fixed objects, the authors of the essays that make up Part II conceive of rights as socially constructed. The extent of the social construction and the factors that influence it are the subject of this section of the Introduction and volume. Whatever the origin of rights - be it God, politics or something else - rights occupy a special position among different types of legitimate claim. As such, the content of rights categories is significant and contested. The essay that opens Part II of the volume is not a radical reconception of the category of rights, although at first glance it may seem to be. In The New Property', Charles Reich makes the seemingly radical argument that government largesse should be considered property rather than a gift or charity. Doing so would be to give those entitled to those benefits a very strong (perhaps the strongest) claim against government that an individual can have. So, the argument is a radical reconception of the category of what constitutes a right, but Reich makes it because of the special status of property rights in American culture and legal tradition. 2 Although the arguments put forth by Reich and also by David Stone seem radical, the premise of their arguments is, by its very nature, conservative. The authors do not seek to challenge rights as legal categories or social institutions, preferring instead to expand the categories of rights. The power of these arguments comes from the notion that, if included, these new rights-holders (trees and welfare recipients in these cases) would enjoy almost absolute protection. These authors thus recognize that rights are social constructions and that, while the limits of the category of 'rights holder' are fluid, the liberal legal construct of rights is important (and indeed, perhaps unquestionable), A more destabilizing conception of the entire concept of rights comes from the political theorist Jeremy Waldron and others who recognize not only that rights are socially constructed, but that they inevitably are also in conflict and that these conflicts must be resolved. In 'Rights in Conflict' (Chapter 6), Waldron explores what it means to have conflicting rights and ultimately concludes that how we resolve these conflicts will differ depending on what rights are said to be and where their power lies. In other words, he reminds us that the Part I of this 2 A similar argument is made by David Stone (1972). The essay is a radically reconceives of the concept of rights-bearer, but is fundamentally traditional in that the author looks to rights to protect the interest he seeks to promote.

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volume is important. Rights can be in conflict, and our shared social understanding of what rights fundamentally are will determine how we resolve these conflicts. The final two essays in Part II share an interesting idea that there is something important about rights that lies well outside their capacity to create legal order, legal relationships and legal duties. The essays share the idea that rights can sometimes do harm, either to the individuals asserting them or to the larger community in which those individuals are embedded. In Chapter 7 Martha Minow argues that, despite the harms that can come from asserting a right, this act also has a community-enhancing function whereby the assertion of rights (or of a rights-violation) works to reinforce community norms and obligations, and acts essentially as a catalyst for people to consider such matters. Mark Tushnet (Chapter 8) finds virtually no redemption in the idea of rights, however. At a time when scholars associated with critical legal studies challenged the standard perception that rights serve to protect rights-holders, scholars associated with the critical legal studies movement argued that rights are socially constructed (Scheingold, 1974), vacuous (Tushnet, Chapter 8), reified (Aron, 1989; Gabel 1981) and overutilized (Glendon, 1991). Some feminists argued that rights embody male norms and therefore will not ultimately aid women (Olsen, 1984) or at least will do so only problematically (MacKinnon 1989). Like their political theory counterparts, critical legal studies scholars criticized the notion of rights as appearing formally neutral but being unequally enjoyed by individuals. Tushnet is but one example of what was then a growing body of scholarship critiquing the concept of rights as inherently useful. These debates among legal and political theorists are interesting but are not, for the most part, informed by empirical data. Given the conflicting assertions ofthe importance ofrights, the conflicts about rights and the empty promise of rights, an empirical understanding of the way rights work in various situations seems a natural next step. Rights in Empirical Relief

Part III begins with an essay that provides a comprehensive overview of the stages ofrights claiming. The essays in each subsection go on to illuminate each stage in turn. The opening essay by William Felstiner, Richard Abel and Austin Sarat begin (Chapter 9) with the conception that shows how disputes (including those about rights) 'emerge' (p. 257) rather than exist outside the dynamic process by which individuals construct them. Rights, therefore, are not self-enforcing but rather must be realized by individuals. As such, rights are constructs, and the processes by which individuals come to understand themselves as suffering a harm to which some right may provide remedy is important to empirically understand. This understanding of disputes provides what later becomes much of the framework for the study of disputes and rights mobilization (explicitly and implicitly) in law and society. The authors demonstrate that disputes 'emerge' as individuals transform 'unperceived injurious experiences' into 'perceived injurious experiences' into 'grievances' (p. 259), a transformation from the broad mass of injuries unrecognized by those who suffer them to the harms that people recognize. Some proportion of these experiences then become 'grievances' (p. 257) - injuries that involve a violation of a right or entitlement. Only some grievances become 'claims' (p. 259--60) - when an individual contacts the party responsible for the grievance - and fewer still are fully-fledged 'disputes' - when the party allegedly responsible

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for an individual's claim denies their responsibility. A certain number of disputes result in 'filings', a formal complaint (in a litigation model, a court filing) and the smallest category of all is made up of 'trials' - cases that are adjudicated. The significance of 'naming, blaming and claiming' comes from the theoretical focus on the process of disputing, which emphasizes a part of the process of rights claiming that had, heretofore, been largely unexamined in favour of emphasis on legal institutions (such as courts) and legal professionals (like lawyers and judges) and had provided a framework on which the analysis could rest. The authors invite empirical research on each of the moments that make up 'dispute emergence'. What are the factors that affect whether or not an individual will claim legal protection when it is afforded her? Rights and Individuals

The 'naming, blaming and claiming' framework makes clear that rights must be understood from a social-psychological standpoint because each phase of dispute transformation involves individuals. Empirical research demonstrates that a number of factors may make individuals less likely to want to assert rights. They may fear (rightly, it turns out) that they will be stigmatized for doing so (Sobo and Suh, 2000; Fiske, 1998; Kaiser and Miller, 2001; Major and Kaiser, 2003; Marshall, 2003), there may be other competing notions about law that interfere with rights claiming (Albiston, Chapter 13), or individuals may be able to handle their conflicts by appealing to other systems of social support rather than turning to law (Engel and Munger, 2003). Recognizing that when legal rights are invoked because they have arguably been violated puts the rights claimer in the role of 'victim' in some way, Kristin Sumiller's classic work, The Civil Rights Society: The Social Construction of Victims (1987) encourages a socially situated understanding of what it means to invoke rights in a legal system that offers 'protections' for those who may already be in the role of subordinate in employment situations and society generally by virtue of their race and gender (see also Sumiller, 1988). Laura Seth Nielsen's essay, 'Situating Legal Consciouness', (Chapter 11) work builds on Sumiller, demonstrating the importance of understanding the social location of individuals in order to understand when they will want to enforce rights. As part of a large body of research which examines how individuals' race, class and gender mediates how people understand rights (Comaroff, 1985; Ewick and Silbey, 1992, 1998; Fleury-Steiner, 2004; Sarat, 1990; Sarat and Kearns, 1995), Nielsen's essay demonstrates that legal consciousness and attitudes about law are shaped, in part, by past experiences with law and legal actors, which are affected by social status, including race and gender. Although still primarily a social-psychological account of rights consciousness, 'situating' legal consciousness is an argument for continued attention to the structural environments in which individuals are located and how those affect rights claiming. In 'Rights, Remembrance, and the Reconciliation of Difference' (Chapter 10), David Engel and Frank Munger demonstrate the importance of identity in determining whether individuals are likely to make rights claims. In their multi-year study of the Americans with Disabilities Act, Engel and Munger show that rights consciousness can vary over time as individuals go through their lives, as the law itself changes and as individuals make attempts to claim rights. Moreover, one's perceived identity plays a role in the process of conceiving that one

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has a right, moreover, one's perceived identity plays a role not only in deciding to enforce a legal right, but also in the process of merely conceiving that one is a right-holder. Engel and Munger show how the identity category of 'disabled' (for the purposes of protection under the Americans with Disabilities Act) is constructed by individuals who have disabilities in relation to work, school and other social institutions and its important implications for rightsclaiming processes. 3 Rights in Organizations

Individuals often engage in rights claim ing within organizational settings. Because organizations have their own imperatives and authority structures, organizations themselves can have important effects on rights consciousness as well as on rights activation. As such, empirical research on rights consciousness and claiming within organizations has begun to proliferate, exploring the tensions between rights claims and other, competing claims to the institutions, norms, organizations and social systems that may also be implicated. Although organizations were once thought to be moving towards substantive justice as due process protections were increasingly being implemented (Selznick, 1969), current scholars of organizations are less optimistic about the success of law and law-like structures in organizations (Edelman and Chambliss, 1999; Edelman, Erlanger and Abraham, 1992; Edelman and Suchman, 1997). Empirical study has demonstrated that organizational structures can obscure responsibility, making it difficult for those who suffer a deprivation of some right to identify the deprivation or know who or what is responsible for it (Nelson and Bridges, 1999). Finally, organizations have their own set of actors responding to the organization's imperatives, which can be in competition with rights. Two essays in this volume examine rights claiming in organizations and show how organizational culture and imperatives can affect rights-claiming behaviour. In 'Internal Dispute Resolution' (Chapter 12), Lauren Edelman and her colleagues demonstrate that civil rights offices designed to guarantee employee civil rights in the workplace transform the law such that these offices become more like mediation departments designed to 'resolve problems' rather than ensure rights protections for employees. The authors demonstrate that organizational imperatives - in this case, to minimize the corporation's exposure to legal risk - affect how people understand and pursue their rights claims. Catherine Albiston's work on the Family and Medical Leave Act (Chapter 13) studies what happens when rights are asserted in the workplace but are in opposition to different, powerful social and institutional norms, including the idea of being a 'good worker' and a 'good mother'. Albiston finds that rights can be of little importance when the rights claim is up against these other powerful ideas, but she also finds that workers sometimes successfully employ the norms embodied in the new law to contest institutionalized ideas about work in their negotiations over leave.

3 For a detailed critique of the more psychological approach to the study of rights consciousness and claiming, see Silbey (2005).

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Rights in Social Movements

One of the reasons why scholars are so concerned with rights is that they traditionally have been a prominent strategy for social change. Using quite different empirical approaches, books by two political scientists in the 1990s asked the fundamental question: can courts bring about social change? Gerald Rosenberg's The Hollow Hope (1991) and Michael McCann's Rights at Work (1994) take up this question directly although they ultimately arrive at very different conclusions about the role of rights in America. The essays that make up this section of Part III interrogate this debate from different perspectives. In Chapter 15, Rosenberg uses three case studies of rights-oriented political strategies in the litigation system to examine the United States Supreme Court's ability to produce social change and ultimately concludes that courts do not have the requisite institutional capacity to produce social change. Rosenberg's thesis drew heavy criticism from other social scientists, who criticized him for using questionable data (see McCann, Chapter 14) and for developing an instrumental model of rights and their relationship to social change. Several scholars developed new empirical evidence demonstrating the utility of law and rights, especially in the struggle for civil rights in the United States (Donohue and Heckman, 1997; McCann, 1994; Smith and Welch, 1997). McCann's review of Rosenberg's book (which previews his then forthcoming book on pay equity reform in the workplace) critiques Rosenberg's thesis asking a slightly different question than Rosenberg's (see Chapter 14). Rather than enquiring ifrights work to bring about social change McCann examines how rights work at multiple phases of a reform movement. This difference allows him to be attentive to the subtle and unintended consequences of rights, not just for social change, but also for people's consciousness; the role rights discourses play in arguments; and the role of rights in mobilizing individual actors who are or become actors in a social movement. He examines the influence of rights and law generally in four phases of legal mobilization-movement building, the struggle to compel formal changes in official policy, the struggle for control over actual policy reform and the transformative legacy of legal action. In each phase and for each player in the movement, legal rights hold different promises, pitfalls and power. McCann concludes that rights are very important for social movements not just for legal successes, but also for individual actors in those movements. The McCann-Rosenberg debate over the question of the utility of rights for social change raises a broader question about the role of rights in a social movement. Rights in Global Contexts

As law itself has become more 'global', the question of whether rights developed/constructed in one country are useful or even understandable in other countries has become an important area of empirical research. Many international governing bodies (for example, the UN) and non-governmental organizations (for example, the World Bank, International Monetary Fund, Ford Foundation) work to export rights from one country to another, as well as to study the process by which rights are transformed as they traverse the globe. Debates about the role of rights on the global stage surround questions about whether rights are used to export domination and hegemony from the United States abroad or are tools of liberation for those living in different parts of the world. The focus of rights scholarship on the United States

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Theoretical and Empirical Studies of Rights

obscures the fact that rights themselves and legally-oriented rights-based strategies for legal reform are not uniquely American phenomena; legal rights are used to advance social causes in many countries (Epp, 1998; Feldman, 2000; Heyer, 2000, 2001; Sarat and Scheingold, 2001), even in countries in which cultural and legal norms are less adversarial than in the United States (Epp, 1998; Feldman, 2000; Ginsburg, 2001). Globalization theorists disagree on the promise for influencing conditions within nationstates when pressure is brought to bear by the global community. Some argue that global cultural forces constitute state action and form (Meyer and Staggenborg, 1996; Meyer, 1977; Meyer and Hannan, 1979) and can quite significantly affect domestic politics. Other globalization scholars see transnational civil society as 'an arena of struggle, a fragmented and contested area' (Keck and Sikkink, 1998, p. 33). The final section of Part III and this volume presents two essays that exemplify two approaches to the study of rights in global contexts. The first, by Katharina Heyer (Chapter 16) studies the cultural, social and political barriers to American-style rights-oriented strategies in other countries. Heyer studies how social movement activists understand rights and advocate them in their countries. The other, by Sally Merry (Chapter 17), is a study of rights from the top down. That is to say she begins with a rights-based movement against domestic violence which adopted a human rights advocacy approach and enters countries to form a global movement to explore on-the-ground adaptations of the movement's goals. Both essays demonstrate the elasticity of the concept of rights when advanced in local contexts with different social and legal norms. Of course, rights are transformed when they are exported from one legal context to another. In 'Rights on the Road' (2001) and in 'The ADA on the Road' (Chapter 16), Katharina Heyer shows that the social movements for people living with disabilities originated in the United States where it takes a uniquely rights-orientated form. Although the social movement advocating for people with disabilities is imported by activists in Germany and Japan, the movement is shaped by the culture of the countries into which it is imported. When exported to Japan, where norms of caring are based on a familial model - that is to say, if a family has a disabled member, social norms dictate that the family would support that individual - adversariallegal rights are less significant. The promise of rights for influencing conditions within nation-states when pressure is brought to bear by the global community is contested, but Merry's study provides some hope in that she demonstrates the adaptability of human rights to local contexts that are very different. In spite of similar local contexts in which these human rights are asserted, the appeal can be quite different to people with very different world-views Conclusion

Rights are not trumps employable in all contexts and with certain outcome. Neither are rights vacuous and powerless social constructs. Rather, rights are social constructs that, based on shared social understanding and state legitimacy, are meaningful but not path-determinate. As such, the empirical study of rights in empirical relief is the only way to assess the utility of rights and how that varies for different individuals across social contexts and within different arenas.

Theoretical and Empirical Studies of Rights

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References Aron, Nan (1989), Liberty and Justice For All: Public Interest Law in the 1980s and Beyond, Boulder, CO: Westview Press. Bobo, Lawrence and Suh, SusanA. (2000), 'Surveying Racial Discrimination:Analyses from aMultiethnic Labor Market', in Melvin L. Oliver, Lawrence D. Bobo, James H. Johnson and Abel Valenzuela (eds), Prismatic Metropolis: Inequality in Los Angeles, New York: Russell Sage Foundation. Bumiller, Kristin (1987), 'Victims in the Shadow of the Law: A Critique of the Model of Legal Protection', Signs: Journal of Women and Culture in Society, 12, pp. 421-534. BumilIer, Kristin (1988), The Civil Rights Society: The Social Construction of Victims. Baltimore, MD: Johns Hopkins University Press. Burke, Thomas F. (2002), Lawyers, Lawsuits, and Legal Rights, Berkeley: University of California Press. Comarotf, Jean (1985), Body of Powel; Spirit of Resistance: Culture and History of a South African People, Chicago: University of Chicago Press. Donohue, John J. and Heckman, James (1997), 'Continuous versus Episodic Change: The Impact of Civil Rights Policy on the Economic Status of Blacks' in John J. Donohue III (ed.), Foundations of Employment Discrimination Law, New York: Foundation Press, pp. 225 --42. Edelman, Lauren B. (1992), 'Legal Ambiguity and Symbolic Structures: Organizational Mediation of Civil Rights Law', American Journal of Sociology, 97, pp. 1531-76. Edelman, Lauren B. (2002), 'Legality and the Endogeneity ofLaw', in RobertA. Kagan, Martin Krygier and Kenneth Winston (eds), Legality and Community: On the Intellectual Legacy of Philip Selznick, Lanham, MD: Rowman & Littlefield; Berkeley, CA: Berkeley Public Policy Press. Edelman, Lauren 8. and Chambliss, Elizabeth (1999), 'Sociological Perspectives on Equal Employment Law', in Conference on the New Frontiers in Law's Engagement with the Social Sciences, Chicago: American Bar Foundation. Edelman, Lauren B., Erlanger, Howard S. and Abraham, Steven E. (1992), 'Professional Construction of Law: The Inflated Threat of Wrongful Discharge', Law and Society Review, 26, pp. 47-83. Edelman, Lauren 8., Fuller, Sally Riggs and Mara-Drieta, Iona (2001), 'Diversity Rhetoric and the Managerialization of Law', American Journal of Sociology, 106, pp. 1589-641. Edelman, Lauren B. and Suchman, Mark C. (1997), 'The Legal Environments of Organizations', Annual Review ofSociology, 23, p. 479. Engel, David M. and Munger, Frank W. (2003), Rights ofInclusion: Law and Identity in the Life Stories ofAmericans with Disabilities, Chicago: University of Chicago Press. Epp, Charles R. (1998), The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective, Chicago: University of Chicago Press. Ewick, Patricia and Silbey, Susan S. (1992), 'Conformity, Contestation, and Resistance: An Account of Legal Consciousness', New England Law Review, 26, pp. 731-49. Ewick, Patricia and Silbey, Susan S. (1998), The Common Place of Law: Stories From EVelyday Life, Chicago: University of Chicago Press. Feldman, Eric A. (2000), The Ritual of Rights in Japan: Law, Society, and Health Policy, Cambridge: Cambridge University Press. Fiske, Susan T. (1998), 'Stereotyping, Prejudice, and Discrimination', in D.T. Gilbert, Susan T. Fiske and G. Lindzey (eds), Handbook of Social Psychology, New York: McGraw-HiII, pp. 357--411. Fleury-Steiner, Benjamin(2004), Jurors' Stories of Death: How America's Death Penalty Invests in Inequality, Ann Arbor: University of Michigan Press. Gabel, Peter (1981), 'Reification in Legal Reasoning', Research in Law and Sociology, 3, pp. 25-52.

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Galanter, Marc S. (1983), 'Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) About Our Allegedly Contentious and Litigious Society', University of California Los Angeles Law Review, 31, pp. 4-71. Ginsburg, Tom (2001), 'Confucian Constitutionalism? Globalization and Judicial Review in Korea and Taiwan', in Law and Society Association Annual Meeting, Budapest, Hungary. Glendon, Mary Ann (1991), Rights Talk: The Impoverishment of Political Discourse, New York: The Free Press. Heyer, Katharina (2000), 'From Special Needs to Equal Rights: Japanese Disability Law', Asian-Pacific Law and Policy Journal, 1, at: www.hawaii.edu/aplpj. Heyer, Katharina (2001), 'Rights on the Road: Disability Politics in Japan and Germany', in Political Science, Manoa: University of Hawaii. Kaiser, Cheryl R. and Miller, C. T. (2001), 'Stop Complaining! The Social Costs of Making Attributions to Discrimination', Personality and Social Psychology Bulletin, 27, pp. 254-63. Kaiser, Cheryl R. and Miller, C.T. (2003), 'Derogating the Victim: The Interpersonal Consequences of Blaming Events on Discrimination', Group Processes and Intergroup Relations, 6, pp. 227-37. Keck, Margaret E. and Sikkink, Kathryn (1998), Activists Beyond Borders: Advocacy Networks in International Politics, Ithaca, NY: CorneII University Press. Kostiner, Idit (2003), 'Evaluating Legality: Toward a Cultural Approach to the Study of Law and Social Change', Law and Society Review, 37, pp. 323--66. LangdeII, c.c. (1900), 'Classification of Rights and Wrongs', Harvard Law Review, 13, pp. 537--66. Macaulay, Stewart (1963), 'Non-Contractual Relations in Business: A Preliminary Study', American Sociological Review, 28, p. 55. MacKinnon, Catharine (1989), Toward a Feminist Theory of the State, Cambridge, MA: Harvard University Press. Major, Brenda and Kaiser, Cheryl R. (2005), 'Perceiving and Claiming Discrimination', in L.B. Nielsen and R. Nelson (eds), The Handbook of Employment Discrimination, New York: Kluwer, pp. 27993. Marshall, Anna-Maria (2003), 'Injustice Frames, Legality, and the Everyday Construction of Sexual Harassment', Law and Social Inquiry, 28, pp. 659-89. McCann, Michael (1994), Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization, Chicago: University of Chicago Press. McCann, Michael W. and March, Tracey (1996), 'Law and Everyday Forms of Resistance: A SocioPolitical Assessment', Studies in Law, Politics, and Society, 15, p. 207. Meyer, David S. and Staggenborg , Suzanne (1996), 'Movements, Countermovements, and the Structure of Political Opportunity" American Journal of Sociology, 101, pp. 1628-60. Meyer, John (1977), 'The Effects of Education as an Institution', American Journal of Sociology, 83, p.55. Meyer, John W. and Hannan, Michael T. (eds) (1979), National Development and the World System, Chicago: University of Chicago Press. Mnookin, Robert and Kornhauser, Lewis (1979), 'Bargaining in the Shadow of Law: The Case of Divorce', Yale Law Journal, 88, pp. 950-97. Nelson, Robert L. and Bridges, WiIIiam P. (1999), Legalizing Gender Inequality: Courts, Markets, and Unequal Pay for Women in America, Cambridge: Cambridge University Press. Nielsen, Laura Beth (2004), 'The Work of Rights and the Work Rights Do: A Critical Empirical Approach', in Austin Sarat (ed.), The Blackwell Companion to Law and Society, Oxford: Blackwell Publishing. Olsen, Frances (1984), 'Statutory Rape: A Feminist Critique of Rights Analysis', Texas Law Review, 63, pp. 387-432.

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Rosenberg, Gerald N. (1991), The Hollow Hope: Can Courts Bring About Social Change?, Chicago: University of Chicago Press. Sarat, Austin (1990), 'The Law is All Over: Power, Resistance, and the Legal Consciousness of the Welfare Poor', Yale Journal of Law and Humanities, 2. Sarat, Austin and Kearns, Thomas R. (1995), Law in Everyday Life, Ann Arbor: University of Michigan Press. Sarat, Austin and Scheingold, Stuart (eds) (2001), Cause Lawyering and the State in a Global Era, New York: Oxford University Press. Scheingold, Stuart (1974), The Politics of Rights: Lawyers, Public Policy, and Political Change, New Haven, CT: Yale University Press. Selznick, PhiIlip (1969), Law, Society, and Industrial Justice, New York: RusseIl Sage Foundation. Silbey, Susan S. (2005), 'After Legal Consciousness', Annual Review of Law & Social Science, 1, pp. 323-68. Smith, .lames P. and Welch, Finis R. (1997), 'Black Economic Progress after Myrdal', in John J. Donohue III (ed.), Foundations of Employment Discrimination Law, New York: Foundation Press. Stone, David (1972), 'Should Trees Have Standing? Toward Legal Rights for Natural Objects', Southern California Law Review, 45, pp. 450-501.

Part I Historical and Philosophical Perspectives on Theories of Rights

[1] A UNIVERSAL DECLARATION OF HUMAN RIGHTS PU.i.BLB

WMrffU recognition of the inherent dignity and of the equal and inalienable rights of·aIl members of the human f8JDily is the foundation of freedom, justice and peace in the world,

Whma. disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom oC speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people, Wh.!TfIIS it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be· protected by the rule of law, WMretU it is essential to promote the development of friendly relations between nations,

A

DECLARATION UNIVERSELLE DES DROITS DE L'HOMME PdAMBULE

Comiderant que la reconnaisssnce de la dignite

inherente it tous les membres de la £amiDe humaine et de leurs droits egaux et inalienables constitue le fondement de la libcrte, de la justice et de la paix dans le monde, ComitMrant que la meconnaissanee et le mepris des droits de I'homme ont conduit it des aetes de barbarie ~ ui revoltent la conscience de I'humanite et que I avenement d'un monde OU les ~tres humains seront libres de pader et de croire, liberes de la terreur et do la misere, a ete proclame comme la plus haute aspiration de l'homme, COluiJerant qu'il est essentiel que les droits de l'homme soient proteges par un regime de droit pour que I'homme ne soit pas contraint, en supr~me recours, a la nivolte contre la tyrannic et I'oppression, ComitMrant qu'il ost essential d' encourager le developpement de relations amicales entre n3tions,

Theoretical and Empirical Studies of Rights

4

WAma. the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and wOJ:l!.en and have determined to promote social progress and better standards of lite in larger freedom, Wkmu Member States have pledged themselvea to achieve, 'in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms, WA.rnwu a common understanding of these rights and freedoms is of the greatest importance for the full resiization of this pledge,

Now,

iMr11J1'O,

ConMbant que dans la Charte les peuples des Nations Unies ont procIame a nouveau leur foi dans les droits {ondamentaux de l'homme, daus la dignite et la valeur de la personne humaine, dans l'egalite des droits des hommall et des femmes, et qu'its se sont declares resolus 11 favoriser le progres social et ainstaurer de meiUeures conditions de vie dans une liberte plus grande, ComiJbant que les Etats Membres se sont engages aassurer, en cooperation avec l'Organisation des Nations Unies, le respect universel et effectif des droits de l'homme et des lihertes fondamentales, ComidJrant qu'une conception commune de ce8 droits et libertes est de la plus haute importance pour remplir pleinement cet engagement,

The Gemral A_bly

L'hmnblk gblbak

Proclaim. this Universal Declaration of Human

Rights as a common standard of achievement for all peoples and all nations, to the end that every indindual and every organ of society, keeping this Declaration constantly in mind, shall strive hy teaching and education to promote respect for these rights and freedoms and by progressive measures, nstional and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples oC territories nnder their jurisdiction.

la: presente Declaration universeUe des droits de l'homme comme !'ideal commun a atteindre par to us les peuples et toutes les nations afin que tous les.individus et tous lea organes de la societe, arant celte Declaration constamment a I'esprit, s'efforcent, par I'enseignement et 1'6ducation, de developper le respect de ces droits et libertes et d'en assurer, par des mesurea progressives d' ordre national et international, la reconnaissance et l'applieation universelles et effectives, tant parmi les populations des Etats Membres eux-m~mes que parmi ceUes des territoires places sous leur juridiction.

AtlTICLJ 1

AIITICLE PBBKIER

All human beings are horn free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit oC brotherhood.

Tous les ~tres humains naissent libres et egaux en dignite et en droits. IIs sont doues de raison et de conscience et doivent agir les uns envers les autres dans un esprit de fraternite.

ProcJq,f716

Atlna.£ 2

ARTICLE

Everyone is entitled to all the rights .and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, Sel:, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall he made on the basis of the political, jurisdictional or international status of the cou ntry or territory to which a person belongs, whether it be independent, t.rust, non-self-governing or under any other limitation of sovereignty_

AIl!ICU:

2

Chacun peut se preva/oir de taus les droits et de toutes les liberbls proclames dans la presente Declaration, sans distinction aucune, notamment de race, de couleur, desexe, de langue, de religion, d'opinion politique ou de toute autre opinion, d'origine nationale ou sociale, de fortune, de naissance ou de toute autre situation. De plus, il ne sera fait aucune distinction foudee sur le statut politique, juridique ou international du pays ou du territoire dont une personne est ressortissante, que ce pays ou territoire soit independant, sous tuteIle, non autonome ou Boumis a une limitation quelconque de souverainete.

3

ARTICLE

Everyone has the right to life, liberty and the lecurity of person.

3

Tout individu a droit 11 la vie, It la liberte et sa personne.

a la sl1rete de 72

Theoretical and Empirical Studies of Rights ARTICLE

lL

5

ARTICLE

5

ARTICLE

I)

Nul ne sera soumis a la torture, ni a des peines ou traitements cruels, inhumains ou degradants.

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. ARTICLE

4

ARTICLE

Nul ne sera tenu en esclavage ni en servitude; I'esclavage et la traite des esclaves sont interdits sous toutes leurs formes.

No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms. ARTICLE

5

I)

Everyone has the right to recognition everywhere as a person before the law.

Chacun a le droit a la reconnaissance en tous lieux de sa personnalite juridique.

ARTICLE 7 All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Tous sont egaux devant la loi et ont droit sans distinction a uneegale protection de la loi. Tous ont droit aune protection egale centre toute discrimination qui violerait la presente Declaration et contra tont" provocation a une teIle discrimination.

ARTICLE

ARTICLE

8

ARTICLE

ARTICLE 9 No ODe shall be subjected to arbitrary arrest, detention 01' exile.

ARTICLE 9 Nul ne peut !tre arhitrairement arr~te, delenn ni exile.

10

ARTICLE

Everyone is entitled in full equality to a fair and public hearing by an independent and i~partial tribunal, in the determination of his rights and obligations and of any criminal charge against him. ARTICLE

10

Toute personne a droit, en pleine egalite, a ce que sa cause soit entendue equitablement et publiquement par un tribunal independant et impartial, qui deciders. soit de ses droits et obligations, soit du hien fonde de toute accusation en matiere penale dirigtle contre elle.

11

ARTICLE

1. Everyone charged with a penal offence has

11

1. Toute personne accusee d'un acte delictueux est presumee innocente jusqu'a ce qne sa culpabilite ait ele Mgalement etablie au cours d'un proces public ou toutes les garanties necessaires a sa de£ense lui amon! ete assurees. 2. Nul ne sera condamne pour des actions ou omissions qni, an moment ou elles ont ete commises, ne constituaient pas un acte delictueux d'apres le droit national ou international. De m~me, il ne sera inllige aucune peine plus forte que celle qni etait applicable au mllment ou r acte delictuew: a ete commis.

the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. 2. No one shall be held guilty of any penal oft"ence on account of any act or omission which did not constitqte a peJlb.1 offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty he imposed than the one that was applicable at the time the penal oft"eneewas committed. ABTICLE

8

Toute personne a droit a un recours effectif devant les juridictions nationales competentes contre les actes violant les droits fondamentaux qui lui sont reconnus par la constitution ou par la loi.

Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

ARTICLE

7

l'

AUICLI

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the pro-

12

Nul ne sera l'objet d'immixtions arbitraires dans sa vie privtle, sa faInille, son domicile ou sa correspondance, ni d' atteintes It son honneur et a sa reputation. Toute personne a droit a la 73

Theoretical and Empirical Studies of Rights

6

protection de la loi contre de telles immixtions ou de telles atteintes.

tootion of the law against such interference or attacks. ARTICLE 13 1. Everyone has the right to freedom of move-

ARTICLE

nent and residence within the borders of each State. 2. Everyone hall the right to leave any country, including his own, and to return to his country. ARTICLE

14

ARTICLE

2. This right may not be invoked in the ease of prosecutions genuinely arising from nonpolitical crimes or from acts contrary to the purposes and principles of the United Nations. ARTICLE 15 1. Everyone has the right to a nationality.

ARTICLE

16

ARTICLE

2. Marriage shall be entered into only with the free and full consent of the intending spouses. 3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. ARTICLE 17 1. Everyone has the right to own property alone as well as in association with .others.

ARTICLB

collectivite, a droit a la propriete. 2. Nul ne peut Hre arbitrairement prive de sa proprillte.

18

AltTICLE

18

Toute personne a droit Ir. la libert6 de pensee, de conscience et de religion; ce droit implique la libert6 de changer de religion ou de conviction ainsi que la liberte de manifester sa ~eligion ou sa conviction, seuIe ou en commun, tant en public qu'en prive, par I'enseignement, les pratiques, le culte et l' accomplissement des rites.

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

19

17

1. Toute personne, aU8si hien seule qu' en

2. No one shall be arbitrarily deprived of his property.

ARTICLB

16

1. A partir de rage nubile, I'homme et la femme, sans aUCUDe restriction quant a la race, la nationalite ou la religion, ont le droit de se marier et de fonder une famille. lis ont des d~oits sixty days. What happens to the safety of the public after sh.'ty days? The purpose of such 'suspension is primarily punishment, and there is JIO reason why a hearing should not precede the suspension.''' Id. at 477, 364 P.2d at 232. 205. Bailey v. Richardson, 182 F.2d 46,65 (D.C. Cir. 1950). 206. See generally GELLHORN, INDIVIDUAL FREEDOM AND GoVERNMENTAL REsTRAINTS 105-57 (1956) (Chapter Ill, "The Right to Make a Living"). Although it speaks in different terms, and is limited to occupational licensing Professor Gellhorn's discussion is a most perceptive analysis of the meaning of "the public interest." See also SCHUBERT, THE PUBLIC INTEREST (1960) for allI elaborate analysis of differing public interest theories.

Theoretical and Empirical Studies of Rights

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V. TowAnD INDIVIDUAL STAKES IN THE COMMONWEALTH Ahead there stretches--to the farthest· horizon-the joyless landscape of the public interest state. The life it promises will be comfortable and comforting. It will be well planned-with suitable areas for work and play. But there will be no precincts sacred ·to the spirit of individual man. There can be no retreat from the public interest state. It is the inevitable outgrowth of an interdependent world. An effort to return to an earlier economic order would merely transfer power to giant private governments which would rule not in the public interest, but in their own interest. If individualism and pluralism are to be preserved, this must be done not by marching backwards, but by building these values into today's society. If public and private are now blurred, it will be necessary to draw a new zone of privacy. If private property can no longer perform its protective functions, it will be necessary t9 establish institutions to (2rry on the work that private property once did but can no longer do. In these efforts government largess must play a major role. As we move toward a welfare state, largess will be an ever more important form of wealth. And largess is a vital link in the relationship between the government and private sides of society. It is necessary, then, that largess begin to do the work of property. The chief obstacle to the creation of private rights in largess has been the fact that it is originally public property, comes from the state, and may be withheld completely. But this need not be an obstacle. Traditional property also comes from the state, and in much the same way. Land, for example, traces back to grants from the sovereign. In the United States, some \vas the gift of the King of England, some that of the King of Spain. The sovereign extinguished Indian title by conquest, became th~ new owner, and then granted title to a private individual or groUp.207 Some land was the gift of the sovereign under laws such as the Homestead and Preemption Acts.2G8 Many other natural resources-water, minerals and timber, passed into priyate ownership under similar grants. In America, land and resources all were originally government largess. In a less obvious sense, personal property also stems from government. Personal property is created by law; it owes its origin and continuance to laws supported by the people as a whole. These laws "give" the property to one who performs certain actions. Even the man who catches a wild animal "owns" the animal only as a gift from the sovereign, having fulfilled the terms of an offer to transfer ownership.209 Like largess, real and personal property were also originally dispensed on conditions, and were subject to forfeiture if the conditions failed. The conditions in the sovereign grants, such as colonization, were generally made explicit, and so was the forfeiture resulting from failure to fulfill them. In the case of the Preemption and Homestead Acts, there were also specific con207; Johnson v. McIntosb, 21 U.S. (8 Wheat:) 543 (1823). 208. 5 State 453, 455 (Sept. 4, 1841), 12 State 392 (May 20,1862). 209. Pierson v. Post, 3 Cai. R. 175 (1805).

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ditions.21o Even now land "is subject to forfeiture for neglect; if it is unused it may be deemed abandoned to the state or forfeited to an adverse possessor. In a very similar way. personal property may be forfeited by abandonment or 10SS.211 Hence, all property might be described as government largess, given on condition and subject to loss. If all property is government largess, why is it not regulated to the same degree as present-day largess? Regulation of property has been limited, not because society had no interest in property, but because it was in the interest of society that property be free. Once property is seen not as a natural right but as a construction designed to serve certain functions, then its origin ceases to be decisive in determining how much regulation should be imposed. The conditions that can be attached to receipt, o,vnership, ~d use depend not on where property came from. but on what job it should be expected to perform. Thus in the case of government largess, nothing turns on the fact that it originated in government. The real issue is how it functions and how it should function. To create an' institution, or to make an existing institution function in a new way, is an undertaking far too ambitious for the present article. But it is possible to begin a search for guiding principles. Such principles must grow out of what we know about how government largess has functioned up to the present time. And while principles must remain at the level of generality, it should be kept in mind that not every principle is equally applicable to all forms of largess. Our primary focus must be those forms of largess which chiefly control the rights and status of the individual.

A. Constitfltional Limits The most clearly defined problem posed by government largess is the way it can be used to apply pressure against the exercise of constitutional rights. A first principle should be that government must have no power to "buy up" rights guaranteed by the Constitution.212 It should not be able to impose any condition on largess that would be invalid if imposed on something other than a "gratuity."21S Thus, for e.'mIIlple, government should not be able to deny largess because of invocation of the privilege against self-incrimination.!!14 210. The Homestead Act had conditions of age, citizenship, intention to settle was cultivated, and loyalty to the United States. 12 Stat. 392 (1862). 211. Mul1ett v. Bradley, 24 Mise. 695, 53 N.Y. Supp. 781 (1898); Bridges v. Hawkesworth, 21 L.J. Rep. 75 (Q.B. 1851). 212. Note, U11co11$litfltional COllditio11$, 73 HARV. L. REv. 1595, 1599 (1960). 213. Compare Calabresi, RetroactivitJ: Paramount Powers and COlltractflal Changes, 71 YALE L.J. 1191 (1962). In the conte.' I have the luxury, as a scholar, to criticize. I can step back and criticize basic tools of legal practice, like rights, for preserving assumptions about human autonomy that I believe are contrary to social experience and likely to limit social change. Yet when I write a brief, supervise students in their clinical work, or talk to professionals in the trenches, I wonder sometimes whom I am helping and whom I am hurting by criticizing rights. It turns out to be helpful, useful, and maybe even essential, to be able to couch a request as a claim of right. By "helpful, useful, and maybe even essential," I mean not just in terms of winning a given case or convincing a particular official to do a good thing, but in helping to constitute the kind of world where struggles for change can in fact bring about change, and where struggles for meaning and communality can nurture both. Rights can be understood as a kind of communal discourse that reconfirms the difficult commitment to live together even while engaging in conflicts and struggles. The struggle to make meaning of human existence may well demand our separation into groups away from, even antagonistic to, the larger community. If this is the case, then the discourse of rights may be all the more important as a medium for speaking across conflicting affiliations, about the separations and connections among individuals, groups, and the state. The very act of summoning "community," through 213. F. DALLMAYR, supra note 106, at 97 {discussing J.P. (1956}). 214. Folktalts ofjustiu, supra note 25, at 181-82. 215. W. STAFFORD, supra note 199, at 52.

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a language of rights, may expose the divisions within the community-and even beyond it. Legal interpretation, at such moments, happens not just in official acts by official actors. Legal interpretation also occurs through resistance, compliance, and investment of old forms with new meanings. Legal interpretation happens when non-officials seek to hold officials to account, either in terms the officials themselves have offered as rationales or in new terms, embodying normative commitments that have not before made their way into the official canon of meaning. Legal language is never transparent to experience; it constrains and limits what individuals mean even as it conveys a communal meaning. And the communal meaning may well occlude the conflict it resists. Legal meanings pronounced by officials cannot be severed from the violence and power they seek to rationalize; nor can they be reduced to those acts of violence and power. Because private violence can be as bad as official vioience, both public and private efforts to craft legal meanings and normative commitments are important for struggling against oppression. What happens after the law, after official legal pronouncements, good or bad? The interpretive framework suggests that legal pronouncements are possessions of the dispossessed. us We can listen to rights as a language that contains meaning but does not engender it, as sounds that demonstrate our sociability even while exposing the uniqueness of the speaker. Legal language, like a song, can be hummed by someone who did not write it and chanted by those for whom it was not intended.217 Language is nuanced enough to express, "No, that's not what I meant," or even, "There are no words to say what I mean." The language of rights is, or could be, nuanced enough to express, "I am connected to you in my very willingness to observe your boundaries," or "I do not belong to 216. Appleby, The American Heritage: The Heirs IJnd the Disinherited, 73 J. AM. HlST. (forthcoming 1987) (noting how others describe constitutional interpretation as battle among heirs to founding fathers, and offering instead conce;ltion of battle among disinherited). 217. Hanna Pitkin has suggested that a tension between ideals and institutional practices may actually create the opportunity for a critical leverage on each: She writes: The tension may arise through either of two possible historical sequences. Perhaps men conceive some ideal or goal or purpose, and develop an institution or a set of procedures for achieving and perpetuating that goal through time and in the activities of many men. They draw up a set of laws, or institute a school, or create a new agency. But rules require interpretation, and institutions have a way of developing purposes and directions of their own. After a time, men may find themselves torn between their commitment to the original purpose, and their commitment to the institutions that were supposed to bring it about. Or, conversely, a society may gradually and without any deliberate intent develop certain institutionalized or ritual ways of proceeding, and from these it may eventually abstract rules or principles or ideals. At first these rules or ideals may be merely descriptive abstractions of how the institution works, but after a time thcy become critical standards in accord with which the institution can be evaluated and reformed. Again the result is a tension between the "ideal substance" and the "practical form" in which it is embodied. H. PrrKIN, WrrrGENSTEIN AND JUSTICE 187 (1972).

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Interpreting Rights your community, with your norms, but I lay claim to some shared terms in demanding that you respect my separateness."2i8 Perhaps people can work through legal interpretation to communicate disjunction, misunderstanding, even the right to avoid conversation. After the law, we have each other, and the steady burden of learning to live together and apart.

***

In a seminar entitled "Myth, Law, and History," in the fall of 1977, Robert Cover introduced Yale law students to myths and histories' about the creation of law and about central legal preoccupations, such as guilt and innocence. The theme of creation launched a journey through biblical and Talmudic texts, through American constitutional history, and through studies of the law-giver, Moses.2i9 Then, the discussion turned to the Oresteia. Here was a world of divine chaos. Blood-feuds, once started, have no end. Human beings are the hapless victims of the gods' intervention. Aeschylus transforms a well-known story into a sharp dilemma about the relations between justice and violence, and between conflicting normative commitments. The House of Pelops is cursed. Conspirators murder Agamemnon upon his return from the Trojan Wars. Apollo commands Orestes to avenge his 218. See Levinson, Professing Law: Commitment of Faith or Detached Analysis?, 31 ST. LoUIS U.L.J. 3 (1986) (discussing loyalty oaths). Elsewhere, I have written about this power in poetry: Feelings of powerlessness may at times preclude speech, even speech about powerlessness. In this context, I am reminded of a poem so expressive of the di£ficulties in finding words that it conveys silence even as it speaks. The poet W. S. Merwin wrote this shaM, abrupt verse, entitled: "Elegy": Who would I show it to Ending with a preposition, in mid-thought; ending without punctuation, and relying on reference without definition; stand-in words like "who," "I," and "it" for undisclosed references: the poem is perplexing. Incompletion and dependence on what remains forever unsaid weigh heavily in the poem, and at least in some measure, may be its message. Yet, probing for some more specific meaning, the reader could try to relate to the text and draw from the reader's own experience. "Why such incompletion?" the reader can ask. What could be the "it" in the poem-perhaps the elegy in the title. The "In-perhaps the poet. The ''who''-perhaps no one known, no one alive. Perhaps the poem means the poet's relationship with someone has been so interrupted, so cutoff, perhaps by death, that the very idea of memorializing the lost one seems futile. The one person who could understand and appreciate the poet's efforts to write an elegy is gone. The possibility of mourning that could reach closure is so dim that the poet cannot even complete the thought about how to try. And yet, if any of this discussion echoes the meanings the author intended or meanings sensed by readers other than me, another twist in the meaning remains. If I am able to grasp some portion of the poet's thought and feeling, some sense of how great would be the poet's grief, loss, and interruption that produces such a statement of the impossibility of statement, then indeed the poet has communicated. And the silence, between strangers, between author and reader, has indeed been broken. Conversation where there has been silence may best begin this way, in expressions of what has been and perhaps remains inexpressible. Minow, Many Silent Worlds, 9 W. NEW ENG. L. REV. 197, 204-05 (1987) (footnotes omitted). 219. The readings brought together three works about Moses, each by a German writing in the 1930's. See M. BUBER, MOSES (1946); S. FREUD, MOSES AND MONOTHEISM (1939); T. MANN, The Tables of the Law, in 2 STORIES OF A LIFEl1ME 288 (1961).

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father, Agamemnon, by murdering his mother, who herself had planned Agamemnon's death. Pursued by the Furies for the act of matricide, Orestes is inextricably caught between clashing moral imperatives. Apollo directs Orestes to appeal to Athena, because she combines male and female virtues, and embodies the virtues of moderation, restraint, and persuasion. Yet, as Athena knows, the gods are divided, so there can be no direct appeal to their authority. She chooses ten mortal men of Athens to act as a jury of peers. 220 The gods, though, will make the jury's judgment supreme. When the jury casts its lots, they come out evenly, and Athena casts the deciding vote. She pardons Orestes, but her decision topples the prevailing divine legal order. Mercy does violence to law. Athena has challenged the power of the Furies by excusing Orestes from their charges; she has dislodged the divine order by appointing a jury of mortals. Responding to the angered Furies, Athena interprets the jury vote: You have not lost, she says, for the vote was even. Athena proposes that the Furies, the Olympian gods, and men will share control of the legal order, and indeed, share sovereignty in the minds of humanity. With a new role-to punish those who offend the due processes of law-the Furies are transformed, and become the Eumenides, the "Kindly Ones." Sky and earth, eagle and snake, freedom and necessity, the new order and the old-all are joined in a new iteration of the continual struggle. There was a moment in the class when Bob Cover conjured up the closing choice reached by the gods to create a public sphere, beyond the conflicts of blood feuds. It was a choice to turn the instruments of justice over to humans beings. It was a moment of hope and a moment of necessity. We gained the right to interpret our own meanings, and pursue our own justice, though we remain tragically caught in ignorance and violence as we compete for the power to give reality to our visions. [AJs long as legal interpretation is constitutive of violent behavior as well as meaning, as long as people are committed to using or resisting the social organizations of violence in making their interpretations real, there will always be a tragic limit to the common meaning that can be achieved. 221 220. Athena charges the human jury to retain a sense of fear even while engaging in selfgovernance: No anarchy, no rule of a single mastCf. Thus/I advise my citizens to govern and to grace./and not to cast fear utterly from your city. What/man who fears nothing at all is ever righteous? Suchjbc your just terrors, and you may deserve and have/salvation for your citadel, your land's defence./such as is nowhere else found among men, neither/among the Scythians, nor the land that Pelops held. Aeschylus, Eummides 160 (R. Lattimore trans. 1953) (lines 698-705). 221. Violence and the Word, supra note 7, at 1629.

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Interpreting Rights May we learn to interpret our suffering; may we recover our rights to make meaning.

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[8] An Essay on Rights Mark Tusbnet* I. The Critique of Rights

The liberal theory of rights forms a major part of the cultural capital that capitalism's culture has given us. I The radical critique of rights is a Schumpeterian act of creative destruction2 that may help us build societies that transcend the failures of capitalism. The first section of this Article develops one version of the critique of rights. The second briefly explores the epistemological basis of that critique.3 Rights, most people believe, are "Good Things." In this Article I develop four related critiques of rights discussed in contemporary American legal circles. The critiques may be stated briefly as follows: (1) Once one identifies what counts as a right in a specific setting, it invariably turns out that the right is unstable; significant but relatively small changes in the social setting can make it difficult to sustain the claim that a right remains implicated. (2) The claim that a right is • Professor of Law, Georgetown University Law Center. A.B. 1967, Harvard University; M.A. 1971, J.D. 1971, Yale University. In memory of my father. I would like to thank Elizabeth Alexander, Steve Goldberg, and Mike Seidman for their comments on carlier vcrsions of this essay. Particularly as to the first, the usual disclaimer may be especially required. 1. I take this to be the defensible core orE.p. Thompson's conclusion that "the notion or the rule of law is itself an unqualified good." E.P. THOMPSON, WHIGS AND HUNTERS 267 (1975). Thompson carefully qualifies that conclusion by his emphasis on the rule of law as a "cultural achievement" of a specific time and place. Id. He is usually taken to be making a broader claim, onc that is independent of the specifics of British culture of the eighteenth century. As I argue below. such a claim is wrong. See i'!fra subpart I(D) (discussing the political disutility critique of rights). 2. See J. SCHUMPETER, CAPITALISM, SOCIALISM. AND DEMOCRACY 81-87 (3d ed. 1950). 3. An early footnote may be the place to identifY two themes in what follows. The first, close to the surface. is the repeated interplay between the notion that social life is continuous. a scamless web. and the notion that sociallifc is subject to radical discontinuity as peoplc's attcntion shifts from their location in a context to their isolation in their individual bodies. The second, perhaps only a more submerged version of the fIrSt, is the role of modernist sensibility in constructing the critique of rights.

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implicated in some settings produces no determinate consequences.4 (3) The concept of rights falsely converts into an empty abstraction (reifies) real experiences that we ought to value for their own sake.' (4) The use of rights in contemporary discourse impedes advances by progressive social forces, which I will call the "party of humanity." Each of these critiques is bound up with a particular rejoinder to the general critique of rights. (1) The argument that rights are unstable responds to the ''unions in Poland" or "freedom of choice in abortion matters" rejoinder: "Surely you on the Left have to think that workers in Poland have a right to form unions, and that women have a right to choose whether to bear children." (2) The argument that rights are indeterminate responds to the "rights structure discourse" rejoinder: "Surely the invocation of rights allows us to engage in rational arguments about what ought to be done." (3) The argument about reification responds to the "Stalinism" rejoinder: "Rights are what stand between us and the Gulag." (4) Finally, the argument about the pragmatic disutility of rights responds to the "working class" rejoinder: "The interests of the working class have always been, and will continue to be, advanced by the extension of rightS."6 A.

Instability

It does not advance understanding to speak of rights in the abstract. It matters only that some specific right is or is not recognized in some specific social setting. It is, for example, literally incoherent to claim that women in neolithic societies ought to have had the right to choose not to bear children. Such a claim would have been meaningless to them. Similarly, John Rawls restricts his analysis to societies that meet the circumstances of justice-moderate scarcity in material goods and pervasive differences among people over what constitutes 4. Michael Perry argues that the first two critiques are directed not at the concept of rights per se but at a particalar version of rights discourse. Perry, Taking Neither Rights-Talk nor the "Critique qlRights" Too Seriously, 62 TEXAS L. REV. 1405, 1411-13 (1984). In one sense that is of course true. I am concerned with the actual use of the concept in contemporary political discussions. I do not deny that a word with the same letters in the same order could be used quite differently. I wonder, however, whether a fully contelCtuaIized approach to the relevant problems (a) would lead us to nse the word "rights," (b) would involve applications of the generalized defmition that Perry offers in the fIrSt part of his article, Perry, supra, at 1405-10, and (c) would rely on the desiccated abstractions A, B, and Xin Perry's defmition. 5. I should note that these three critiques seem to me versions of a broader philosophy of language, roles, and law. But I do not think that their validity depends in any important way on any broader claims than those made here. 6. The critiques, rejoinders, and responses do not really fall into such neat categories. For example, the "Stalinism" rejoinder is met not only by the reification critique but by the pragmatic disutility one as well. Nevertheless, I think the categories are useful as an introduction.

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the good for people.7 In this way, rights become identified with particu1ar cultures and are relativized: to say that some specific right is (or ought to be) recognized in a specific culture is to say that the cu1ture is what it is, ought to recognize what its deepest commitments are, or ought to be transformed into some other culture. The immediate response to this relativization of rights is obvious. Rawls' "circumstances of justice" and other similar constraints on the coherence of rights-talk are themselves so broad that discussions of rights tum out to be coherent across large numbers of societies, all of which are similar enough to our own to make such discussions sensible. This is the "unions in Poland" rejoinder; given the Left's commitment to emancipation, it has to support the right of Polish workers to organize, because the circumstances of life in Poland are not so different from ours as to make incoherent the claim that Polish workers (ought to) have a right to organize.s The "unions in Poland" argument tries to get at something important. It does not, however, undermine the basic claim that the recognition of specific rights is itself what constitutes specific cultures. 1. An Example: The Right to Reproductive Choice .-1 will defend this claim by presenting the fIrst step in an inductive argument, leaving it to others to pursue the wearisome chore of answering those who continue to point to some other right as "surely" sufflciently stable. Because leftists have developed the critique of rights in the contemporary United States, a favorite countertactic is to identify a leftish sort of right which, it is said, leftists must recognize as not relative lest they lose their political credentials. The usual example is the right to reproductive choice.9 The inductive argument offered here, however, demonstrates that leftists need not recognize such a right in a society not so different from our own. Both of the societies I will describe possess Rawls' "circumstances of justice." In neither society has scarcity of material goods been eliminated or differences in conceptions of the good eradicated. Neither is a postrevolutionary utopia as we usually 7. J. RAWLS, A THEORY OF JusncE 126-28 (1971); Rawls, Kantian Constructivism in Moral

Theory> 77 J. PHIL. 505, 536, 539 {1980}.

8. For a similar observation, see Greenawalt, Violence-Legal Justf!ication and Moral Appraisal, 32 EMORY LJ. 437, 446 n.13 (1983) ("The idea, roughly, is that basic forms of social organization, existing technology, religious beliefs, etc., are to be taken as given and the question then becomes what would be the best moral principles for a society with those features."). As Greenawalt concludes, "A deeper analysis would require much more thorough treatment of this problem." Id.; see also infra Part II(B)(I) (criticizing "blueprintism").

9. See. e.g.. Mnookin, The Public/Private J)ic!totomy: Political J)isagreement and Academic Repudiation, 130 U. PA. L. REv. 1429, 1437-38 (1982).

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think of societies that might develop after feminist or socialist revolutions. In particular, I assume that the changes I describe could occur without disrupting basic structures of male domination. The societies I describe need not be wholly attractive, and indeed may be as unattractive in many respects as our own. But they are societies in which it would be impossible for a woman's situation to implicate the kind of right to reproductive choice that is the focus of current concern. The contemporary right to reproductive choice has, as a matter of contingent technological fact, two components. A woman who chooses to have an abortion today necessarily chooses two things: to remove the fetus from her body, and to destroy the fetus. to All the arguments that support the right to reproductive choice apparently implicate only the fIrst decision. The technology of reproduction, however, has now neared the point where the two choices are independent.l1 If the choices were independent, there would no longer be a right to reproductive choice in the sense that interests us today. No one would care about a woman's decision merely to remove a fetus from her body, because that act would not have the consequence (f.e.~ the death of the fetus) that troubles many people today.12 If the removed fetus had some caretaker available to it, the mere act of removal would be morally inconsequential. The modest technological advance needed to separate the two choices easily could be accompanied by an equally modest social advance that would guarantee caretakers to all fetuses/babies in a manner no different from that in which today's babies are guaranteed caretakers. At this point the argument about reproductive choice takes a different shape. If a right to choose not only whether a fetus will be removed, but also whether it will be destroyed were to survive the modest technological and social changes I have described, it would have to be supported by what might be called property-based, psychological, and genetic arguments. Additional social changes, however, could undermine those arguments to the point that the right at issue would not be recognizable as the one we discuss today. The property-based argument is straightforward. Suppose a man decides--on a whim, say-to have his spleen removed. In our society 10. See RoS$, Abortion and the Death of the Fetus. 11 PHlL. & PUB. AFF. 232 (1982). 11. See Robertson, Procreative Liberty and the Control of Conception, Pregnancy, and Childbirth, 69 VA. L. REV. 405, 420-36 (1983). 12. Some people may be bothered by the separation of biological and social parenthood. But even now the growing availability of artificial insemination, adoption. surrogate parenthood, and willed single-parenthood makes it hard to take such concerns scriously-to think, that is, that the child has some right to a particular parent. See id. at 406-08.

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he has a right to control the disposition of his spleen after its removal .. He can donate it to an organ bank, cook it, or throw it away. It is, after all, his spleen. Is the fetus removed from the woman any less hers? It is not necessary to pursue the line of argument that would distinguish between the spleen and the fetus. Instead consider how queer the man's property right in his spleen is. I take it that the ground for this right is that it would be outrageous for some collective agency to commandeer the spleen in the interests of another person's health. Further, I assume that it would be equally outrageous for the agency to override the man's decision to put his removed spleen to a use that all would agree is less than optimal. He can donate it to his cousin even if the agency would, on balance, decide that a distant stranger would benefit more. I will concede, .fmally, that these intuitions support a contemporary judgment that people have strong property rights in their spleens, extending even to a right to destroy them. But it would not shake the foundations of the property system to recognize a slightly weaker property right, one that would protect bodily integrity and the freedom to make choices regarding the use of removed organs, but that would not encompass the power to destroy the tissue. A society that shifted its ideas of property to that extent still would be recognizably capitalist. Indeed, the necessary conceptual change would be rather less significant than the one that led us to see property as a bundle of rights rather than as a tangible object. The psychological argument holds that a woman has a right to avoid the psychological burdens associated with uncertainty. She may not want to worry for the rest of her life whether a person she saw on the street, who vaguely resembled her grandmother, might be her daughter. 13 But these psychological burdens do not arise necessarily because the fetus was once inside the woman. Putative fathers could, and perhaps do today, bear the same psychological burdens. Even if psychological burdens today are borne differentially by women, the gender differences in the bearing of psychological burdens could be reduced substantially in the future. At that point the right to reproductive choice would become disconnected from the issues of gender to which it is today intimately bound. The claim that the woman had a 13. Even under contemporary law, the right to reproductive choice does not clearly rest on a recognition of this interest in peace of mind. The Supreme Court has upheld far more burdensome restrictions on the exercise of reproductive choice: requirements of pathology reports, second physicians, and parental or judicial consent. See Planned Parenthood v. Ashcroft, 103 S. Ct. 2517 (1983). Of course, those decisions may fail to give adequate scope to the "true" right to reproductive choice.

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right to choose destruction of the fetus instead of its preservation would sound very different. Another version of the psychological argument objects to the use of a woman's body merely as the field in which fertile seeds can grow to fruition. Once she is allowed to remove the fetus, however, the agricultural image becomes rather less powerful. What remains is an objection not to using her body but to using her genetic heritage, an objection that is equally available to the man. It follows that if the woman had the right to destroy the tissue once it was removed, so would the man, a conclusion that is clearly at odds with our current understanding of the scope of the right to reproductive choice. 14 . The same can be said of the purely genetic argument for a woman's right to control the disposition of the fetus. Under contemporary law a woman typically must consent to an adoption. IS Yet if she does not, and still refuses to rear the child herself, the state will intervene. 16 Further, the Supreme Court recently held that a genetic father who had not maintained contact with his child (because the genetic mother had successfully concealed the child's location) was not entitled to participate in an adoption proceeding. 17 Thus the purely genetic foundation for a right to control the fetus' disposition is rather weak. It is not obvious that it would be unconstitutional to repeal the adoption consent laws if their only justification were purely genetic. And, once again, the purely genetic argument is entirely independent of the issues of gender that shape our current understanding of the right to reproductive choice. I have proceeded on the assumption that, after the technological advance described above, the nondestructive removal of a fetus would pose no greater threat to a woman than would a removal that destroyed the fetus. But suppose that the technology required to remove the fetus from a woman's body without killing the fetus were slightly more dan14. The problem this argument raises occurs most dramatically when one partner desires destruction of the fetus and the other does not. Some social forum for resolving the dispute seems essential. But even when the partners agree on destruction. it may not violate their relatively weak psychological claims to subject their decision to social controL See supra text accompanying note 12. The partners were enabled to come together in the fIrst place because certain social arrangements existed; the interest in maintaining those arrangements may be sufficient to justifY some modest degree of social control over the outcome. This is of course a version of the argument for an expansive defInition of the state action doctrine. See generally L. TRlBE, AMERlCAN CONSTITUTIONAL LAW § 18. at 1147-74 (1978) (arguing that a liberal state action doctrine has emerged because the Constitution protects individuals only from government action). 15. See, e.g., N.Y. DOM. Ra. LAW § 111(1)(b)-(c) (Consol. 1977). 16. See, e.g., id. § 111(2)(a)-(b). The mother's refusal to consent to adoption or to rear the child would usually render her "untit" and allow the state to terminate her parental rights. Id. 17. Lehr v. Robertson. 103 S. Ct. 2985 (1983).

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gerous than the contemporary technology of abortion. The risk of nondestructive removal might be ten percent greater than the risk of abortion. But I wonder whether any but the right's most ardent defenders would hold that a statute requiring women to remove rather than to destroy the fetus would violate the right to reproductive choice. (How would it differ, for example, from compulsory vaccinations imposed on children whose parents have religious objections to vaccinations?) In short, relatively small changes in technology would make it impossible-or at least very difficult-to talk about a right to an abortion. The Left always has been fascinated by technology as the means by which all social problems will be overcome. But it is not technology alone that can make incoherent the claim to a right to reproductive choice as we now think of it. Suppose that education about contraceptive devices were widespread and that the devices themselves were readily available. Suppose also that no stigma attached to being or . bearing an illegitimate child. Suppose imally that people shared a concept of health and illness that made pain and discomfort a natural part of life, something that simply ran its course and that ought not be cured unless the sick person's life were threatened by the illness. These conditions would require no dramatic changes in our present society, and indeed many people today already hold these attitudes. None of them requires elimination of existing structures of male domination. Suppose fmally that pregnancy were understood by a large majority of the people as something like an untreatable flu that lasts for nine months but that has no long-term consequences, or as a disfiguring and moderately painful condition that some people choose to have and that others have visited upon them. This description may omit other necessary social conditions,18 but the point should be clear. The society I have sketched possesses Rawls' circumstances of justice, and it is not, as neolithic society is, wildly discontinuous from our own. One can imagine a path from here to there that includes no violent upheavals, no elimination of all discord. In that society, asking whether a woman has a right to an abortion would be like asking our contemporaries whether we have a right not to get the flU. 19 18. Science fiction writers have tried to work out the conditions in more detail. See, e.g.. s. (1969); M. PiERCY, WO-

BUTLER, EREWHON (1900); U. LEGUIN, THE LEFT HAND OF DARKNESS MAN AT THE EDGE OF TIME (1976).

19. The preceding argument clearly attempts to structure things so that most people would frod that the arrangements have substantially weakened most of the reasons women now have for securing abortions. Some women, however, still might want to have abortions for idiosyncratic reasons. I suggest that in such a society, no one would care enough about the issue to lead a

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2. J7ze Generalization. -The inductive program whose ftrst step I have just sketched would show that every specific right is just as contingent on social and technological facts as the right to reproductive choice.20 There is no reason to believe that the program cannot be executed. If it can, it will show that the set of rights recognized in any particular society is coextensive with that society. The conditions of the society defme exactly what kind of rights-talk makes sense, and the sort of rights-talk that makes sense in turn defmes what the society is. When someone objects to an act as a violation of a right, the ensuing dialogue either involves a claim that the challenged act is inconsistent with some "deeper" commitments that the actor has-and who is to resolve that c1aim?-or deals with what kind of society we ought to have. If both sides can identify enough openness in the existing structure of rights to make plausible arguments that a right is or is not involved-that the "deeper" commitments "really" mean somethingthey may talk as if they were debating about what kind of society actually exists. But as the next section shows, the indeterminacy of rightsclaims means that the debate is always about what the society is and what it oUght to be. In some social contexts, the party of humanity may be helped by the mutual illusion that the discussion is only about what is. Perhaps that is how observers in the capitalist heartland would like to construe the ''unions in Poland" question. But I doubt that the members of Solidarity see it that way. In March 1964 ftve black men tried to use a segregated public library. When they were denied service, one sat down in a chair in the reading room while the others stood quietly nearby. Or, the ftve men occupied the library.21 In December 1982 a group of homeless men pitched tents in Lafayette Park across from the White House. At night their lack of any place to sleep other than the tents brought home to the public the terrible consequences of its penny-pinching. Or, at night they fell asleep.22 Can anyone seriously think that it helps either in legislature to enact a law prohibiting abortions. One might say that women would have a right to reproductive choice in that society, but it would be akin to the right we now have to pick our noses-moderately discrediting perhaps, but not an object oflegislation. It seems to me that if the critique of rights fails only at this point, it will have done its job rather well. It might be thought that the analogy in the text fails because there is a safe "cure" for the illness of pregnancy, as there is not for the flu. But in the imagined society people do not welcome "cures." They see them instead as artificial and unwarranted interventions in the natural.order of things. 20. I pursue the inductive strategy throughout this Article. By doing so I mean to suggest that just as it is futile to talk about a specific right outside its social context, so is it futile to talk about the institution of rights in general without attending to the meaning of specific rights. 21. See Brown v. Louisiana, 383 U.S. 131 (1966). 22. SeeClark v. Community for Creative Non-Violence, 104 S. Ct. 3065 (1984).

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changing society or in understanding how society changes to discuss whether the black men and the homeless men were exercising rights protected by the flIst amendment? It matters only whether they engaged in politically effective action. If their action was politically effective, we ought to establish the conditions for its effectiveness, not because those conditions are "rights" but because politically effective action is important. B.

Indeterminacy

I have argued that rights-talk often conceals a claim that things ought to be different within an argument that things are as the claimant contends. That masquerade is sometimes successful, at least until the claim is rejected by the courts or by the wider audience for the claim. It is successful because the language of rights is so open and indeterminate that opposing parties can use the same language to express their positions. Because rights-talk is indeterminate, it can provide only momentary advantages in ongoing political struggles. I distinguish two kinds of indeterminacy, which I will call technical and fundamental. Technical indeterminacy is characteristic of the typical rights-talk of our contemporaries. In our usual ways of talking, we have the techniques readily at hand to undermine the claim that some right must be recognized. Technical indeterminacy might be overcome by rejecting some of these usual ways of talking, although that would be difficult, as will soon be apparent. Fundamental indeterminacy occurs because the general concepts that make any kind of rights-talk seem attractive cannot be connected to particular results without specifying so many details about the social setting of the rights as to transform the rights-claim into a description of an entire society. Thus, fundamental indeterminacy is another aspect of the instability of rights I have already discussed.

1. Technical Indeterminacy.-In our usual ways of talking about rights we use at least three techniques to create or acknowledge the existence of rights and to defme them so as to allow us to deny their existence when we want to. (a) .Balancing.-The most familiar technique is to defme a right as the result of a balancing process.23 Balancing can be either an 23. The literature on balancing is large but in the main intellectually thin. The best discussions remain the classics: Frantz, The First Amendment ill the Balance, 71 YALE L.J. 1424 (1962); Mendelson, On the Meaning ofthe First Amendment: Absolutes in the Balance, 50 CALIF. L. REV.

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ad hoc comparison of the interests at stake in a specific case or a com· parison of the interests in a broadly defmed category of cases. The argument that both ad hoc and categorical balancing produce no deter· minate results is so familiar that I will merely catalogue the usual points. First, to balance interests at all one must reduce them to some common measure of value. In many instances the interests appear to be incommensurable. Consider, for example, the difficulties of balancing the costs of operating railroads against the value of life and limb,24 or the danger of Communist speech against the threat, such as it was, to national security.25 The choice of the measure of value must be guided by some substantive theory of rights. But the Supreme Court has not provided us with such a theory. Fundamental indeterminacy argues that there is no such theory. If a substantive theory were available, balancing would be unnecessary. Second, an accurate balance must take account of all the affected interests.26 Yet legal interventions have extremely complex consequences that reach far beyond the narrow setting of most cases. Consider, for example, the argument thatBrown v. Board ofEducation 27 led to the election of Ronald Reagan by way of an incredibly complicated route consisting of the exacerbation of white perceptions of black threats to social stability, a subsequent general shift of the political spectrum to the right, and so on. Rights become indeterminate as fust one side and then the other attaches new long-term consequences to the recognition or denial of particular claims of rights. Third, courts must defme the level of generality on which to balance competing interests. Justice Frankfurter's concurring opinion in .Dennis v. United States 28 is one of the great scandals of balancing. On one side he placed the details of Communist "subversion" and threats to the national security, and on the other a hymn to the abstract values of free speech. But even if, as defenders of balancing usually require, 821 (1962); Fran~ Is lire Firsl Amendment Law?-A Reply 10 Professor Mendelson, 51 CAlIF. L. REv. 729 (1963). That balancing is powerfully attractive is evidenced by Douglas Laycock's reliance on it even when it undermines his entire effort. Laycock, Book Review, 59 TEXAS L. REV. 343 (1981); Tushnet,A Nole on lire Revival ofTextualism in Constitutional Theory, forthcoming in 58 S. CAL. L. REV. (1985). 24. See Southern Pac. Co. v. Arizona, 325 U.S. 761 (1945). 25. See Dennis v. United States, 341 U.S. 494 (1951). 26. The balance need not be entirely utilitarian. The consequences that must be assessed could include the effect a decision would have on Donconsequentialist interests. Yet the image and language of balancing do tend in practice to lead people to some form of utilitarianism. 27. 347 U.S. 483 (1954). 28. 341 V.S.494, 517-56 (1951) (Frankfurter, J., concurring).

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An Essay on Rights the interests are dermed on the same level of generality, selecting that level requires that one have a substantive theory of rights, which by deftnition is not available to the balancer at that point in the analysis. Further, facts and interests can be decomposed or universalized at will, to trivialize or exaggerate the weight of the facts or interests. If courts decide to balance on a relatively abstract level, they can take relatively trivial facts and generalize their triviality.z9 Thus, a balancer who wants to "recognize" a right can choose the necessary measure of value, the necessary consequences, and the necessary level of generality. So can a balancer who wants to deny the claim that a right has been violated. (b) Rights)I. rights.-An interesting version of balancing occurs when a court counterposes one right that it ordinarily acknowledges to be protected against another similarly protected right. The Supreme Court's shopping center cases provide a good example.30 The Court considered claims by demonstrators that they were entitled to access to shopping malls for protest or organizational activity-or, if you prefer, claims that the state could not deprive them of access by enforcing its trespass laws. The Court agreed that ftrst amendment interests were implicated in this situation. But, it held, those interests, even though they were of constitutional dimension, had to be weighed against private property interests that, at least in the absence of contrary legislation,31 had an almost equivalent status. Again a simple catalogue is enough to make the point. The Constitution recognizes many generally protected interests: national unity, state autonomy, individualism, personal autonomy, private association, private property, and social control of property to guarantee economic growth with liberty. In any particular case a court can draw items from that catalogue and balance them as it chooses.

(cj Rights in !ega! contexts .-Finally, rights do not exist in isolation. Each one fits into a background of rights that can be used to derme the limits of a right drawn into present controversy. But of course what is foreground and what is background is itself indetermi29. Id. (weighing detailed communist subversion threats against generalized values of free speech). 30. See, e.g., Hudgens v. NLRB. 424 U.S. 507 (1976); Lloyd Corp.• Ltd. v. Tanner. 407 U.S. 551 (1972); Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc.• 391 U.S. 308 (1968). 31. See Pruneyard Shopping Center v. Robins. 447 U.S. 74 (1980).

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nate, and which parts of the background we choose to rely on to deflne a foreground right will often determine whether the claimant prevails. Ruckleshaus v. Sierra Club 32 provides a useful recent example. The Clean Air Act authorizes courts to award reasonable attorneys' fees in some environmental cases.33 Unlike other statutes, which authorize awards of fees only to prevailing parties, the Clean Air Act authorizes awards whenever the court determines that such an award is appropriate. The Sierra Club argued that the "appropriateness" standard, read against the background of "prevailing party" statutes, meant that courts had discretion to award fees to losing parties. Justice Stevens noted at the outset of his opinion that nondiscretionary awards to losing parties were common in criminal cases, in which the government pays for the defendant's lawyer.34 But his was a dissent. Justice Rehnquist for the majority saw a different background. When the Clean Air Act was adopted, some courts had held that the party must have substantially prevailed to receive awards under "prevailing party" statutes, and had adopted a stringent deflnition of "substantially prevail." According to Justice Rehnquist, Congress reacted to that background by adopting the "appropriateness" standard to avoid a stringent ""substantiality" test. Thus, the party must have "some degree of success on the merits" to receive an award.3s On this view it did not matter that between 1976, when the Clean Air Act was adopted, and 1983, when the case was decided, most courts had relaxed the ""substantiality" requirement so that the Court's test under the Clean Air Act's ""appropriateness" standard was essentially identical to the test under ""prevailing party" statutes, which are worded quite differently. Another part of the background was perhaps more important. Despite Justice Stevens' invocation of criminal cases, the Court saw a longstanding tradition rooted in ""intuitive notions of fairness"36 against awarding fees even to prevailing parties. "Fairness" means that a winner should not be required to pay someone who wrongly charged him with violating the law. Against this background, the Sierra Club had to make "a clear showing" that nonprevailing parties should be allowed to receive awards, and it did not. Another version of this part of the background, though, would show it to be the result of a judg32. 33. 34. 35. 36.

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An Essay on Rights ment that litigation brought by losers generally serves no useful social purpose. Against that background, it is sensible to see Congress as acting to give judges discretion to make awards in those unusual cases in which the general judgment is inaccurate. By re describing the background, then, we can reverse the result. Of course, we always have the option of placing the background-the "intuitive notions of fairness" in Sierra Club-itself into question. To block those moves we would need an antecedent substantive theory of rights. (d) Summary .-In conversation people sometimes acknowledge that rights-talk is indeterminate. But, they say, it is useful because it allows us to carry on coherent discussions about what ought to be done. Technical indeterminacy shows that even this modest claim is wrong. The discussions are coherent only so long as the participants agree not to raise questions about the measure of value, level of generality, or description of the background. But as soon as a rights-claimant sees that her claim is likely to be rejected if the discussion proceeds, the claimant ought to raise those questions. At that point coherence disappears and the shouting begins. 2. Fundamental Indeterminacy.-I fmd it striking that in discussions about the critique of rights, people who think that there are rights take the high ground by identifying a highly abstract right as one whose existence cannot be challenged. And usually 1 don't challenge it. But fundamental indeterminacy makes it impossible to connect that abstract right-"autonomy" or "equal concern and respect" are the usual candidates-to any particular outcome without fully specifying a wide range of social arrangements that the proponents of the right take for granted but that another person who believes in "autonomy" might reject. Part of the argument for technical indeterminacy is that abstract rights get specified in particular legal contexts. The argument for fundamental indeterminacy is that abstract rights get specified in particular social contexts. Because both the legal and the social surroundings can readily be placed in question, the proponent of the abstract right gains nothing by eliciting agreement on the high ground. As before, 1 begin with an example and then show that the analysis can be applied more generally.

(a) An example: Richards on thefamily.-David A.I. Richards, one of the scholars most seriously dedicated to developing a theory of nonabstract constitutional rights, has examined the body of

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constitutional law dealing with relations among parents, children, and the state.37 His premise is that "[w]e must philosophically conceive and explicate the conflicting rights of children, parents, and society, as a matter of general moral and constitutional principle."38 He makes it clear that the principles he seeks must avoid the problems of technical indeterminacy; they must be "systematic," must avoid "balancing. . . principles ... in an intuitionistic way," and must "organize[] and explain [our intuitions] as the consequences of deeper premises."39 Richards fmds in the Constitution a theory of human rights involving "the belief that every person has a capacity for autonomy, and ... the principle that every person has the right to equal concern and respect in pursuit of his autonomy."40 After presenting his theory in a general way, he applies it to problems of family life. According to Richards, under the Constitution children are beneficiaries of rights to equal opportunity and of liberal paternalism; parents "as such, have rights over their children derived from liberal paternalism."41 Equal opportunity requires that children have access to resources for socialization and education sufficient to give them a fair chance in life. This requires in turn that they have.a stable relationship with a psychological parent. For my purposes, what is most striking about Richards' presentation is his assumption that biological parents in nuclear families are the "natural" providers of the required material and psychological resources. To Richards, it is "a startling failure ofimagination to conclude that. . . communal rearing [is] required," because "although some forms of communal rearing undoubtedly may provide the individualized care that is morally due children, others do not," and "extreme forms . . . violate the rights of children more than any but the most abusive parents might." On the other hand, "the nuclear family accommodates the end of individualized care naturally."42 The truth value of this passage would arguably be preserved if one substituted "nuclear family" for "communal rearing" and vice versa, which perhaps suggests where the true failure of imagination lies. Richards pursues this analysis in his discussion of a "right to equal opportunity of schooling," which precludes parents from "indoctrina37. Richards, The IndiVidual, the Family, and the Constitution: A Jurisprudential Perspective, 55 N.Y.U. L. REV. 1 (1980). 38. Id. at 5-6. 39. Id. at 6 n.37. 40. Id. at 8. 41. Id. at 20.

42. Id. at 21.

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tion in rigid sectarian ideology."43 The secularism of this approachits denial that autonomy can be achieved, as some theologians believe, through the brotherhood and sisterhood of people in the parentage of God-is striking. Richards here seems to reject one of the Rawlsian circumstances of justice in that he denies the significance of one set of views of the good that exists in our society. He thus derives a conclusion that follows from his premises only if society is arranged one way rather than another. Richards' discussion of the rights of biological parents presents a more significant illustration of fundamental indeterminacy. Richards writes that parents have a "right. . . to raise their children," derived in part from "the presumption that parents have the ability and the willingness that best fulIills each child's right to individualized care," and in part from the fact that "one's children are the test of one's life and aspirations."44 Richards assumes that biological parents are "most suited to custody and control" because "they often have the strongest motives to provide the ... environment that is the child's right."45 Surely here Richards himself suffers from a failure of imagination. The values he attributes to biological parenthood are actually attributes of social arrangements to which we have become accustomed.46 A useful example is Lehr v. Robertson, which involved a biological father who had not married his daughter'S mother.47 The mother married another man and the couple made plans to adopt the child. The biological father had continuously attempted to locate his daughter and even hired a detective agency to ftnd her. Once he found his daughter, her mother refused to permit him to see her. The Supreme Court rejected his claim that he had an absolute right to notice of the pending adoption. It distinguished between "a developed parent-child relation43. Id. at 22. 44. Id. at 28 (emphasis added). 45. Id. at 36. 46. A fanatic who misunderstood the teaching of sociobiology might claim that, despite the general pervasive influence of social arrangements, there remains a residue of purely genetic concern for the preservation of the genetic material each parent has provided. See E. WILSON, ON HUMAN NATURE (1978). Yet the emphasis on "reciprocal altruism" in sociobiological thought demonstrates that nothing turns on the existence of such a residue. Suppose, for example. that infants were separated from their mothers at birth, were placed in hospital nurseries, and were brought out at random to mothers who wanted to see "their" children. I suppose it is clear that in such a system no one would have any greater sociobiological interest in advancing the cause of the child he or she brought home from the hospital than in advancing the cause of any other child. (The fanatic sociobiologist might claim that how nurses bring infants out from the nursery to mothers is genetically determined. The variability in child-delivering practices of that sort is so great as to make that claim implausible.) 47. 103 S. Ct. 2985 (1983).

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Ship,"48 in which the parents' "emotional attachments. . . derive from the intimacy of daily association,"49 and what it termed an "inchoate relationship."50 Lehr v. Robertson establishes as a matter of contemporary constitutional law that the relevant parent-child relationship is affectiona1 and emotional, not biological. Thus, this relationship is largely dependent on social arrangements independent of the law, such as the mother's ability to conceal the location of her child. If "the family" is deftned by ties of affection rather than blood, it is hard to see a distinction between rights pertaining to "the family" and those pertaining to "the family of man," that is, to people generally. The exercise attempted to specify some subset of human rights derived from notions of autonomy and equal concern. The derived subset, however, is the same as the original set. Richards, of course, might respond by claiming that Lehr v. Rober/son was wrongly decided. But the broader point, the contingency of the relationship between biological parenthood and the values from which Richards attempts to derive parental rights, can be seen in another way by imagining a society only slightly different from our own. We can think of our system of family law as assigning to older people responsibility for the care of younger ones. It is a system of usually implicit licensing, which becomes explicit only when evidence of abuse or neglect raises questions of parental fitness. Imagine instead a system in which the initial assignment of younger people to older ones was routinely reconsidered after two years. 51 I doubt that the older people who received the initial assignment would find in the younger ones "the test of [their] li[ves] and aspirations."s2 In the alternative, imagine a society in which everyone was conscious that family law included a licensing system. There, perhaps, people would begin to think about putting the assignments up for grabs at birth or before. Some older people would be licensed as physically and mentally fit to "produce" children, others as ftt to rear them. But one license need not accom48. Id. at 2993.

49. Id. at 2987.

50. Id. at 2993. 51. Again there may be some psychological objections raised here, on the ground that infants develop attachments to psychological parents and that it alters their development in a troubling direction to sunder those attachments by reassignments. But I wonder whether those attachments would develop to the same extent in a society in which the norm was reassignment rather than retention in the original family and whether sundering the attachments in such a society necessarily would alter development in a troubling rather than an encouraging direction. 52. See Richards, supra note 37, at 28. As with the property-based argument for the right to reproductive choice, see supra text accompanying note 13, the argument I criticize depends in large measure on the metaphoric force of calling children "ours."

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pany the other.53 In that society biological parenthood would not give rise to rights at all. Yet no feature of that society appears to violate the principles of autonomy and equal concern with which Richards began. In addition, although this is less clear, the concept of "parenthood" in that society would be so different from ours that its members might not think of "parents" as having rights at all. James Fishkin has recently argued that efforts like Richards' are inevitably beset by contradiction.54 Fishkin argues that attempting to specify the meanings of autonomy and equal concern and respect produces a conflict between parental autonomy and equal opportunity for children.55 This conflict arises because parental choices substantially influence the life chances of children, and because what Richards calls "social policies" to "accommodate[] the end of individualized care. . . more justly"56 in fact intrude substantially on the sphere of parental autonomy. If Fishkin is correct, the effort to move from the grand abstractions of "a theory of human rights" to a specification of determinate, particularized rights cannot succeed.57 (b) The generalization .-Fundamental indeterminacy occurs because rights have a social context. When we try to specify a particularized right in some localized area, we discover that we have committed ourselves to a description of an entire social order.58 This point, at least, has not escaped the Justices. San Antonio Independent School .District v. Rodriguez59 is pervaded by the Court's concern that recognizing a right to attend a school fmanced by a relatively equalized system would produce consequences for the tax system, the system of property rights, the balance between central and local direction of education, and so on. When the Court in Washington v. .Davis rejected a claim that policies could be invalidated solely because of their disproportionate adverse impact on blacks, it said: 53. See Lafollette, Licensing Parents, 9 PHIL. & PUB. AFF. 182 (1980). 54. J. FISHKIN, JUSTIcE, EQUAL OPPORTUNITY, AND THE FAMILY (1983). 55. Id at 51-55. Nothing in Fisbkin's argument turns on assigning power to make decisions to biological parents. The contradictions he identifies arise solely because decisions are committed to parents. Id. at 36·37. 56. Richards, Stlpra note 37, at 21-22. 57. For another example of the discontinuity between endorsement ofrights in the abstract and unsupported claims that particular rights follow therefrom, see F. SCHAUER, FREE SPEECH: A PHILOSOPHICAL ENQUIRY (1982). 58. For an especially dramatic example from the anthropological literature illustrating how the meaning of following rules is determined by the social context in which the rules are articulated, see T. COMAROFF & S. ROBERTS, RULES AND PROCESSES: THE CULTURAL LOGIC OF DISPUTE IN AN AFRICAN CONTEXT (1981). 59. 411 U.S. I (1973).

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A rule that a statute designed to serve neutral ends is nevertheless invalid, absent compelling justification, if in practice it benefits or burdens one race more than another would be far reaching and would raise serious questions about, and perhaps invalidate, a whole range of tax, welfare, public service, regulatory, and licensing statutes that may be more burdensome to the poor and to the average black than to the more affluent white.60 Even more generally, because rights have a social context, their realization as a fact of social life rather than their mere recognition in political and legal rhetoric requires that right-holders have the material and psychological resources that will allow them to exercise their rights. Yet liberal rights rhetoric ordinarily fails to consider that fundamental social changes are necessary to allow people to exercise their rights. As Fishkin puts it, liberalism "accept[s] background inequalities provided that certain process-related equalities are maintained."61 Rodriguez demonstrates this point also. Advocates of school tmance equalization argued that it was required by the first amendment, because children disadvantaged in the educational system-left functionally illiterate or ill-informed about public matters-would be disadvantaged in the political system as a result. The Court responded that it had "long afforded zealous protection against unjustifiable governmental interference with the individual's rights to speak and to vote. Yet we have never presumed to. . . guarantee to the citizenry the most effective speech or the most informed electoral choice."62 Similarly, a ''volunteer'' army in a class-divided society, which structures options so that some tmd it easier to choose to be soldiers than do others, illustrates the relation between one right and all the others. Specifying a particular right is thus either an act of political rhetoric or a commitment to social transformation. In this way the indeterminacy critique recapitulates the instability argument. 3. The Scope of the Indeterminacy Critique .-1 have argued that particular rights exist in and therefore define a dense network of other legal rights and social arrangements. But the critiques developed so far undoubtedly seem at least a little askew. In the past, after all, the party of humanity has effectively appealed for political support on the ground that those in power were betraying their own stated commitments to legality. We know, moreover, that the Helsinki Watch 60. 426 U.8. 229, 248 (1976). 61. J. FISHKIN, supra note 54, at 6. Fishkin here describes Ely's position, J. ELY, DEMOCRACY AND DISTRUST (1980), in constitutional law. In contract law, Hale, Bargaining, Duress, and Economic Liherty, 43 COLUM. L. REV. 603 (1943), provides the parallel critique. 62. 411 U.8. at 36 (emphasis in original).

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groups, monitoring the failures of "actually existing" socialist states in Eastern Europe and the Soviet Union to honor human rights, are speaking to audiences that would be more than happy to have their governments honor human rights. In the face of these facts of political life, how can the instability and indeterminacy critiques be sustained? The answer is built into the critiques themselves, which insist that talk about rights is always tied to particular social contexts. One important element in the context is the degree to which the arguments from instability and indeterminacy seem cogent to people in the relevant audiences. That degree differs from one culture to another. In a society whose legal culture remains relatively formalist, the arguments will not seem cogent, and the concept of rights will have real significance. That is why Helsinki Watch groups are important. But it is also why the Left in Great Britain is properly opposed to the adoption of a Bill of Rights; in that culture a Bill of Rights would enhance the political power of the privileged without bolstering the position of the Left. Although I am open to argument the other way, the instability and indeterminacy critiques seem to have substantial cultural power in the United States.63 In addition, the critiques themselves rest on assumptions about language and social life that seem simply to be true.64 Yet the realist influence is not so dominant as to have swamped all opposition. The American Civil Liberties Union remains an important force, and its members have been active in Helsinki Watch. This conflict within the legal culture, and the enduring commitment to rights in the culture generally, raise important questions of political strategy. If in fact the instability and indeterminacy critiques rest on views of language and social life that are simply true, can the party of humanity temporarily abandon the critiques in order to appeal to those who have not yet recognized their force? If the critiques are persuasive within that part of the society with which the party of humanity is affiliated, what sort of political action is appropriate with respect to other parts of the society? These are both versions of the "unions in Poland" argument: how can the Left simultaneously mak.e the critical argument against rights and approve of Solidarity and Helsinki Watch? Or at least, how can it do both in good faith? I will argue later that it can do so on pragmatic grounds. For now it is enough to say that if the critiques rest on true views oflanguage and social life, they cannot be made to go away by invoking the "unions in Poland" argument. Thus, we 63. See Tushnet, Post-Realist Legal Scltolarsltp, 1980 WIS. L. REV. 1383 (arguing that efforts lO revitalize formalism have failed). 64. See Kennedy. Critical Labor Law Tkeory: A Comment, 4 INDUS. Ra L.J. 503 (1981).

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must defend our judgments on some other ground. If the critiques are culturally bound, however, there is nothing odd about saying that rights in Poland are a good thing, while rights in the United States are not. They are, after all, different cultures.6s C.

Retfication

The language of rights is attractive in part because it seems to describe important aspects of human experience. We all fear, but also desire and need, the influence that other people have on our lives. Some rights, like the right to reproductive choice, protect us against the intrusions that others may seek to visit upon us. Other rights, like the rights to nutrition or education, secure from others some of the things we need to flourish.66 Thus, the language of rights captures the contradictory predicament of people as at once alone and together, independent and yet necessarily in solidarity with others, individuals whose lives have meaning only in society. The language of rights attempts to describe how people can defend the interests they have by virtue of their humanity against efforts by others to suppress those interests or to live indifferent to the suffering caused by failing to recognize the interests of others. I could not sensibly deny the importance of experiences of independence and solidarity. They are central parts of our humanity. But the reification critique claims that treating those experiences as instances of abstract rights mischaracterizes them. The experiences themselves are concrete confrontations in real circumstances, rich in detail and radiating in innumerable directions. When I march to oppose United States intervention in Central America, I am "exercising a right" to be sure, but I am also, and more importantly, being together with friends, affiliating myself with strangers, with some of whom I disagree profoundly, getting cold, feeling alone in a crowd, and so on. It is a form of alienation or reification to characterize this as an instance of "exercising my rights." The experiences become desiccated when described in that way. We must insist on preserving real experiences rather than abstracting general rights from those experiences. The language of rights should be abandoned to the very great extent that it takes as a goal the realization of the reified abstraction "rights" 65. This poSition does not claim that cultures which do not appreciate the force of the critique of rights are backward in any interesting sense. Moreover, if the critique is entirely culturally bound and is not determined by anything inherent in language or human society, we need give no priority to our culture; it just is the way it is, and other cultures just are the way they are. 66. For a discussion of the significance of the inImnity in our society of the latter kinds of rights, see infra Part I(D)(2)(b).

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rather than the experiences of solidarity and individuality.67 Moreover, the social theory according to which rights advance human interests is at best only tenuously established. In one of its incarnations, that social theory calls the critique of rights Stalinist be. cause rights are an important part of what stands between us and the Gulag. In this version at least, the theory is just wildly implausible. In the language of classical rhetoric one might analogize this incarnation of the theory to a synecdoche, which takes the denial of rights, a part of Stalinism, for the whole. The Gulag was, of course, a denial of rights, but surely no one would defend a theory of society or history which held that it was caused by the denial of rights rather than by the personalities of Lenin and Stalin, the social, political, and economic situation of the Soviet Union in the 1920s, and so on. It is not easy to spell out how the refusal to recognize rights impairs human interests. That would require a theory of interests according to which some people-the oppressors or the indifferent-, Rev. 695 (1988).

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ble imprint in many aspects of many citizens' lives. But in many other cases the shadow of the courts--including both general precedents and specific legal ploys-play a very important role in delimiting the tactical options, opportunities, and resources available to citizens seeking to chal, lenge domination and improve their lives. And these implications of judi, cial action depend little on either the policy,making capacity or enforcement powers of courts themselves, around which Rosenberg builds his analytical framework.

Applications to Reform Movement Struggles Most scholarly studies in the bottom,up, disput~entered tradition have focused on legal tactics and constraints in small'5cale civil conflicts among individuals and small groupS.40 Some studies have applied the ap' proach to larger,scale public conflicts and reform campaigns, however. These studies typically focus less on whether courts "produce" intended changes than on the various ways that reform activists deploy legal resources to wage their campaigns in multiple venues outside of courts. The result in most cases is a more complex look at the implications of legal action for issue agenda setting, movement building, negotiating and lobbying efforts, remedial program development, and even personal transformation than suggested by Rosenberg:u Two brief examples will illustrate the divergent implications for understanding the role of litigation in actual reform politics. First, I return to the legacy of Brown. Rosenberg's judgment of small indirect effects hinges on the decision's: low salience, measured by media 40. This reflects in large part a reorientation to thinking about power, social struggle, and change that narrows the gap between everyday disputes and large-scale "public" conflicts. See Susan S. Silbey & Austin Sarat, "Critical Traditions in Law and Sociery Research," 21 Law & Soc'y Rev. 167 (1987); and generally James Scott, Weapons 0/ the Weak: Everyday Fonns 0/ Peasant Resistance (New Haven, Conn.: Yale University Press, 1985). 41. I would include among these complex works the formidable historical studies by E. P. Thompson, Whigs and Hunters, and Michael E. Tigar & Madeleine R. Levy, Law and the Rise ofCapicalism (New York: Monthly Review Press, 1977). Scheingold's influential discussion of recent legal reform efforts (Politics 0/ Rights, cited in note 1) has been followed by related works on specific policy reform legacies. See Olson, Clients and Lawyet:S (cited in note 20); Frank}. Sorauf, The of Separation: The Constitutional Politics of Church and State (princeton, N.}.: Princeton University Press, 1976); Mark Kessler, Legal Services far the Poar: A Comparatille and Contemparary Analysis 0/ Interor,ganizational Politics (Westporc, Conn.: Greenwood Press, 1987); Rica Bruun, ''The Boldt Decision: Legal Victory, Political Defeat," 4 Law & Pol'y 271 (1982); Staughton Lynd, "Communal Rights," 62 Tex. L Rev. 1417 (1984); Neal Milner, "The Dilemmas of Legal Mobilization: Ideologies and Strategies of Mental Patient Liberation Groups," 8 Law & Pol'y 105 (1986); Jack Katz, POOT People's La~et:S in TTansition (New Brusnwick, N.J.: Rutgers University Press, 1982). General intetpretive arguments deserving note include Crenshaw, 101 Haw. L Rev. (cited in note 18), on the civil rights legacy, and Schneider, 61 N.Y.U.L Rev. (cited in note 17), on the women's movement.

wau

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736 LAW AND SOCIAL INQUIRY

coverage of the opinion itself; failure to coerce or inspire federal elite suP"' port; negligible impacts on public opinion among blacks and whites; and small impact on civil rights advocacy groups beyond the elite, legalistic NAACP. From the dispute-centered view, much of the data is of marginal relevance. The initial focus of judicial impact should be specifically on the primary parties in the initial conflict-that is, on organized whites and blacks in the South. Leading social movement scholars on the subject (many cited by Rosenberg) tell a story that not only differs a bit from Ra-senberg's but parallels that offered by dispute~oriented legal analysts such as Stuart Scheingold.42 In particular, these social movement analysts document at length the significant impact of Brown on the NAACP and middle~class southern blacks, emphasizing especially the former's crucial leadership role in mobilizing the latter for action:!3 Sociologist AIdon Morris demonstrates in his outstanding book, for example, that NAACP local activists "were the leaders who spearheaded the resistance of the black community." Brown was crucial to this evolving leadership role and radicalism in two ways. First, it raised southern blacks' hopes less by moral inspiration than by "demonstrating that the Southern white power struc~ ture was vulnerable at some points" and providing scarce practical resources for defiant action. "The winning of the 1954 decision was the kind of victory the organization needed to rally the black masses behind its program; by appealing to blacks' widespread desire to enroll their children in the better~equipped white schools it reached into black homes and had meaning for people's personal lives."44 Second, the increasing "pressure on the Southern white power structure to abolish racial domination" led to a massive, highly visible attackincluding legal assaults as well as violent intimidation-on the NAACP itself. These reactions in turn forced a split between local, church-affiliated NAACP leaders urging more radical forms of protest action and the bureaucratic, legally oriented national organization. The result was a marked increased in both the momentum of the grass-roots protest campaign among southern blacks generally and frustration about the effectiveness of legal tactics alone. "The two approaches-legal action and mass protest---entered into a turbulent but workable marriage."45 Moreover, as Morris, McAdam, and other movement analysts demonstrate, it was the resulting escalation of conflicts between whites and blacks on both fronts that "expanded the scope" of the dispute to include federal officials, local courts, the northern media, and national public opinion. After all, how can one separate events in Little Rock and elsewhere from the legal actions 42. Scheingold, "Social Change" (cited in note 33).

43. Supra note 10.

44. Morris, Civil Rights Movement 32, 34 (cited in note IQ). See also Matthews & Prothro, Negroes (cited in note 10). 45. Morris, Civil Rights Movement 39.

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that, in various degrees, precipitated the conflicts? Rosenberg thus may be accurate in arguing that court decisions did not unilaterally "cause," by moral inspiration, defiant black grass--roots action or, by coercion, federal support for the civil rights agenda. But these narrow claims hardly refute that the legal tactics pioneered by the NAACP figured prominently in defining (around civil "rights") and intensifying the initial terms of racial conflict in the South. As Morris counsels, "It would be misleading to present the courtroom battles in narrowly legallight."