Rights Talk

1. Rights Talk Have Rights Assumed Too Central a Place in American Politics?

2. The Land of Rights • “There is no more telling indicator of the extent to which legal notions have penetrated both popular and political discourse than our increasing tendency to speak of what is most important to us in terms of rights, and to frame nearly every social controversy as a clash of rights.” Glendon, Rights Talk • We formulate our political arguments in terms of rights. For instance, in the abortion debate, one side argues that the baby has a right to its life and the other side argues that the mother has a right to choose. Both sides argue in terms of what either the government cannot do, i.e. impair a woman’s right to choose, or what the mother cannot do, i.e. impair the baby’s right to life.

3. The Anglo-Saxon Tradition vs. the Continental Tradition • This means that we formulate our political discourse in terms of individual rights. In a sense, this naturally follows from our founding principles as they were stated in the DI. Government is instituted, it claims, to secure rights. Consequently, it also follows from the English tradition in political theory (Hobbes and Locke), which emphasized individual rights over and above societal responsibility or individual responsibility. • “It made a considerable difference, for example, that natural rights theories were elaborated for us principally by Hobbes and Locke, without the glosses added within the continental tradition by Rousseau and Kant.” • “Rousseau’s vigorous embrace—at a crucial juncture in European history—of the classical notion that law can and should help to shape society and to make good citizens of the individuals who compose it, together with Kant’s emphasis on the ability of human beings to create and follow ethical norms, still figure importantly in the intellectual horizon of the continental jurists.” • “Buried deep in our rights dialect is an unexpressed premise that we roam at large in a land of strangers, where we presumptively have no obligations toward others except to avoid the active infliction of harm.” Who is this reminiscent of? • Hobbes. You can now see why political theory matters. The difference between Hobbesian/Lockean emphasis on individual rights and the Kantian emphasis on individual responsibility helps to explain a substantial cultural/legal difference between the United States and European countries.

4. Rights Talk is a Symptom of the Theoretical Tradition in which America Was Founded • “Blackstone’s primer on rights, bred into the bone of American lawyers, postulated that the principal aim of society was to protect individuals in their absolute rights, but that ‘with regard to absolute duties, which man is bound to perform considered as mere individual, it is not to be expected that any human municipal law should at all attempt to explain or enforce them.’ The Declaration of Independence proclaimed our inalienable rights to life, liberty, and the pursuit of happiness, but the only duty it mentioned was that of overthrowing an unjust government after a long train of abuses.”

5. The Problem with Rights Talk • Emphasizes rights instead of duties. What is owed to us, or what we are owed over and against either other people or the government instead of what we owe to others and to our government. • Moreover, it encourages a kind of absolutist thinking that discourages the accommodation necessary for healthy politics. There are simply winners and losers in the domain of rights; there’s little room for political negotiation and compromise. • “Our rights talk, in its absoluteness, promotes unrealistic expectations, heightens social conflict, and inhibits dialogue that might lead toward consensus, accommodation, or at least the discovery of common ground. In its silence concerning responsibilities, it seems to condone acceptance of the benefits of living in a democratic social welfare state, without accepting the corresponding personal and civic obligations. In its relentless individualism, it fosters a climate that is inhospitable to society’s losers, and that systematically disadvantages caretakers and dependents, young and old. In its neglect of civil society, it undermines the principal seedbeds of civic and personal virtue…All of these traits promote mere assertion over reason-giving.”

6. Positive and Negative Rights • There are two types of assertions of rights in America: positive and negative rights. • Negative rights are those rights that circumscribe a domain of life into which the government and other people cannot intrude. • Ex: The right to practice the religion one chooses or not to practice religion at all; the right to live the life one chooses; the right to the property one earns. • These are all negative rights because they assert what we possess over and against interference from others. • Positiverights are those rights that we feel owed by the government. • Ex: The right to a good education; the right to decent healthcare; the right to a decent job. • Positive rights develop in American political discourse during the New Deal and FDR’s “Second Bill of Rights.” These are those rights that we must possess for us meaningfully to be said to be free. If we do not have a decent job or healthcare, FDR argues, we can’t meaningfully be called free. • The problem is that we assert both rights, positive and negative, but we do not feel a corresponding duty to contribute to the society that provides us with these rights.

7. The Judicialization of Political Questions • Glendon argues that part of the reason for the increase in rights talk was the development, beginning in the 1960s, of the courts as the institution to which we turn to achieve political results. • That is, instead of attempting to achieve political change through the difficult process of consensus-building within the political branches of government, people began turning to the courts to rectify every political injustice that they saw. • Because the courts speak only in terms of rights (it is, after all, their job to protect individual rights over and against the intrusion of other branches), there was a corresponding tendency to assert more dramatically the rights one possessed and the fact that the political branches should not intrude on those rights. • *Again, the problem with this development is that, instead of building a consensus in the democratic process with which everyone can be relatively content, the assertion of rights tends to create winners (who are happy with the result and will never compromise) and losers (who are unhappy with the result and grow bitter and disillusioned.

8. Excessive “Median Strips” • Ultimately, the problem with rights talk, Glendon argues, is it encourages us to think in an unrealistic way about our political processes and what’s required politically. • We have said that the DI points to a government which conceives of law in terms of “median strips” that keep us from running into one another. But the difficulty is that there is more involved in politics than merely assuring that we are able to pursue our happiness in whatever way we define it. • Politics also involves the creation of a healthy political community, inhabited by healthy citizens, capable of pursuing happiness in a meaningful ordered way. Liberty is only truly liberty if one has the self-discipline necessary to be truly free. • The problem is that the state must involve itself in more than merely securing people’s right “to do whatever they want” if people are going to be truly free in a meaningful way. Parents recognize that they must set meaningful limits on their children to help them achieve self-control but, when we use rights talk excessively, we do not recognize government’s ability to set limits upon certain expressions of “freedom” so as to allow citizens to achieve self-control. • That is, for government to be a meaningful expression of the human interest in substantively improving ourselves, it must still retain some of the Aristotelian notions of law. To the extent to which it abandons such notions of virtue and public responsibility, it leaves us as strangers set against one another asserting our rights against one another.

9. Excessiveness of Rights Talk is that Much More of a Problem in a Land of Individuals • In a mass, modern society, the excessiveness of rights talk becomes troubling in a way that it might not have been in nineteenth-century America or the America of the founding fathers. • “In a society whose members are, more often than not, literally strangers, and where law is more pervasive than any other common bond, traditional legal ways of talking about responsibility are no longer surrounded and supplemented by other normative discourses.” • That is, in an older America, our proneness to rights talk was supplemented by religious traditions and community traditions that emphasized duty and responsibility. In the individualism of contemporary America, it becomes much more problematic for the law to treat us as a nation of strangers because, whereas before it cut against the civic reality of America, it now merely re-enforces America’s civic reality. • Thus, Glendon argues, by supplementing our law with the European notion of individual and community responsibility, America can use the law to supplement and help solve the current individualism rather than allow the law to increase individualism.