LEGAL THEORY Rights Discourse and Its Critics Anne Macduff

1. LEGAL THEORY Rights Discourse and Its Critics Anne Macduff

2. Lecture Outline • Rights Discourse (Lecture 13) • Categories of rights • Justifications of rights • Liberal theories of fundamental human rights • Locke • Kant • Waldron • Critical Rights Discourse (Lecture 14) • Bentham • Sandel • Glendon • Hutchinson and Monahan • Douzinas And Waldron again..

3. Image sourced from: http://upload.wikimedia.org/wikipedia/commons/c/c8/Jeremy_Bentham_by_Henry_William_Pickersgill_detail.jpg • Bentham 1748- 1832 • A liberal rights advocate • But natural rights were “nonsense on stilts”! • The only source of rights was the law. • Rights are based on the capacity to suffer, not human’s ability to reason. (Welfare)

4. Image sourced from: http://www.phillwebb.net/topics/Society/Sandel/Sandel.htm • Sandel 1943- • Critic of liberalism • “Communitarian”

5. Sandel’s criticism of liberal rights Three steps in the argument presented by Sandel in RB: • (1) A critique of liberal theories of human rights • Some liberal rights theories (including utilitarianism) communicate a preferred version of the good life and are therefore internally contradictory, and • Other liberal rights theories (including Kant) emphasise that individuals are freely choosing agents, which Sandel argues that they are not. • (2) Consequently, liberalism provides no basis for privileging the rights of tolerance and freedom of choice over the common good, ie individual human rights should not trump the common good. • (3) Sandel supports instead a politics of the common good (as opposed to a politics of rights). He refutes that such a politics will lead to intolerance and totalitarianism. The common good enriches the public life, which encourages mutual respect and understanding. A politics of the common good needs to be valued more highly.

6. Sandel’s criticism • Step 1 (critique) • Liberal rights theories are internally contradictory • While the justification of liberal rights is based on the protection of a person’s liberty to freely choose their individual version of the good life, and • While liberalism states that no government should impose a particular preferred view of the good life on individuals, • Sandel reviews 3 different liberal justifications of human rights and argues that, on closer examination, they all operate to support a particular version of the good life. • A) The liberalism that argues that rights theories that are justified on the basis that all morals are subjective merely hides the values that liberals defend. That is, “Toleration and fairness are values too…” p22 RB#2 • B) Utilitarian liberalism, which argues that rights theories are justified because liberal rights promote the welfare of the largest number, are also problematic fails to protect rights for all individuals. This particular form of the good life is what is preferred by the majority. • “ As the majority will is an inadequate instrument of liberal politics- by itself it fails to secure individual rights- so the utilitarian philosophy is an inadequate foundation for liberal principles.” p22 RB#2

7. Sandel’s criticsm • (C) A Kantian justification of liberal human rights • “Now the commitment to a framework neutral among ends can be seen as a kind of value- in this sense the Kantian liberal is no relativist- but its value consists precisely in its refusal to affirm a preferred way of life or conception of the good. For Kantian liberals then, the right is prior to the good, and in two senses. First individual rights cannot be sacrificed for the sake of the general good, and second, the principles of justice that specify these rights cannot be premised on any particular version of the good life. What justifies the rights is not that they maximize the general welfare or otherwise promote the good, but rather that they comprise a fair framework within which individuals and groups can choose their own values and ends, consistent with a similar liberty for others.” p23 RB#2 • A right over the good

8. Sandel’s criticism • A right over the good, or the good over the right? • “… the communitarian critics of modern liberalism question the claim for the priority of the right over the good, and the picture of the freely choosing individual it embodies. Following Aristotle, they argue that we cannot justify political arrangements without reference to common purposes and ends, and that we cannot conceive our personhood without reference to our role as citizens, and as participants in a common life.” p24RB#2 • Sandel argues that a Kantian model assumes that the identity of an individual must be as separate and detached, and formed prior to the community: • “On the rights-based ethic, it is precisely because we are essential separate, independent selves that we need a neutral framework, a framework of rights that refuses to choose among competing purposes and ends. If the self is prior to its ends, then the right must be prior to the good.” p24RB#2 • Sandel argues that this is not realistic. He argues instead for a vision of the self that is situated in the community, and whose ideas about purpose and ends come from the community itself. • “.. (T)he story of my life is always embedded in the story of those communities from which I derive my identity- whether family or city, people of nation, party or cause.” p24 RB#2

9. Sandel’s “Politics of the common good” • Step 2: if Liberal theories cannot justify individual human rights, then human rights should not necessarily have priority over a conception of the common good. • Step 3: A politics of the common good: • A “situated and embedded self” leads to valuing a politics of the common good. • When people are seen as “attached” and “obligated” to one another, the common public life is valued and a sense of common involvement and enterprise, which then privileges the common good. • Moreover, far from ending up with “prejudice and totalitarianism’, Sandel argues that a politics of the common good would lead to an enhanced respect for each other. Or, alternatively, liberal theories and a view of the unencumbered self is as likely to lead to intolerance as communitarian theory.

10. Comments on Sandel’s ideas • Critique of Liberalism: is liberalism contradictory? • Extent to which this criticism undermines liberal theories of rights? • Perhaps just that human rights frameworks are culturally specific, ie not founded in an understanding of human nature that is objectively true because it is universal, fundamental • This may still allow a liberal theory of rights to be sustained, on the concession that thinking about rights may differ depending on the cultural context: ie which rights are viewed as fundamental, how they are prioritized, how rights are justified and the institutions through which rights can be realised. • Critiquing the liberal emphasis on identity formation: • Extent to which this is “true”? Are individuals free to choose their identity, aims and goals, or are these “choices” shaped by the values of the communities in which they live? • To what extent does a liberal theory of rights rely on a liberal theory of self, so that critiquing the liberal vision of self will bring down a liberal theory of rights? • Lack of engagement in political life: a “politics of the common good”: • Enhancing a sense of community • Could even be the call to recognise the importance of rights of groups (Kymlicka)

11. Image sourced from: http://www.news.harvard.edu/gazette/2003/10.02/11-bradley.html • Mary Ann Glendon (1938- )

12. Glendon’s critique • A critique based about “rights talk” • “[This article] is not an assault of specific rights or on the idea of rights in general, but a plea for re-evaluation of certain thoughtless, habitual ways of thinking and speaking about rights.” p15 • Glendon claims that while rights are useful, the use of “rights talk” is undesirable for a community (the US) because: (1) Rights language closes down discussion about the public good, and (2) Rights language risks over simplifying issues which exacerbates public discord, and (3) Rights language can be counterproductive because too many rights dilutes the importance of rights, and (4) Isn’t always the best way to address injustice and distracts us from other potentially good arguments The implication being that rights language causes “the public life to wither” and creates “… impoverished notions of duty and community.” page 17

13. Gledon’s 4 claims • (1) Rights language closes down discussion about the public good because it causes people to seek to assert their own rights, rather than weighing up their concerns and claims in context, ie in the community. • “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.” p14

14. Glendon’s argument • Comments • Does rights language really divide? It might if rights talk understood as trivial expressions of desire that cannot be satisfied: ie petty squabbling. But what if rights language is understood as the assertion of important statements about equality? This would seem to encourage communities to be more inclusive? • Is conflict necessarily a bad in a society? • If individuals in society will disagree, are rights a reasonable language in which to express disagreement? • Can consensus and common ground be created through disagreement? (See Waldron)

15. Glendon’s argument • (2) Rights language oversimplifies issues and creates conflict. • “By indulging in excessively simple forms of rights talk in our pluralistic society, we needlessly multiple occasions for civil discord. We make it difficult for persons and groups with conflicting interests and views to build coalitions and achieve compromises, or even to acquire that minimal degree of mutual forbearance and understanding that promotes peaceful coexistence and keeps the door open to further communication.” • A sociological claim: do rights cause conflict? • If they do cause conflict, is this a bad thing? • Even if rights do express conflict, would enhancing a sense of the common good lead to peace? Or just silent oppression? • Even if rights talk does simplify, is simplification one of the political advantages of rights- ie it provides a bottom line that is clear and meaningful

16. Glendon’s argument • (3) Rights language is politically counter-productive: • “Occasions for conflict among rights multiply as catalogs of rights grow longer. If some rights are more important than others, and if a rather small group of rights is of especially high importance, then an ever-expanding list of rights may well trivialise this essential core without materially advancing the proliferating causes that have been reconceptualised as involving rights.” p16 • Two comments: • Fundamental and core rights have a value because they are “special”, by having more rights, we dilute their importance politically and we get over-sensitized to them as a society and thus loose interest. • Is this accurate as a sociological claim? • Theoretically, are the achievements of “core” rights threatened by the expression of other rights? Or are they mutually reinforcing? • Glendon assumes a hierarchy of rights. Those calling for an expansion of rights would not say that their rights are unimportant- whose hierarchy of rights is Gledon supposing is correct?

17. (4) Rights language not always suited : • “At some point one must ask whether an undifferentiated language of rights is really the best way to address the astonishing variety of injustices and forms of suffering that exist in the world.” p16 • There is a “richness of moral sentiments” p15 • The alternatives? • “A refined rhetoric of rights would promote public conversation about the ends towards which our political life is directed. It would keep competing rights and responsibilities in view, helping to assure that none would achieve undue prominence and that none would be unduly obscured.” p15 • Responsibilities? Charity? Compassion?

18. (Left): Image sourced from: http://i184.photobucket.com/albums/x304/tpc0470/Rights.jpg (Right) Image sourced from NSW HSC: ://www.hsc.csu.edu.au/legal_studies/law_society/human_rights/human_rights/human_rights.htm&usg • Comments: • Rights and responsibilities?

19. Hutchinson and Monahan • These writers critique liberal rule of law theories, ie those liberal rule of law theories that are more than just “procedural formality” but which include individual rights. [Tamanaha] • Liberal rule of law theories (based on rights) are problematic because: • an “impoverished” view of community, and this view reduces politics to a debate about individual interests, which is prevents [individuals] from debating the “common life”.

20. A view of community: • Argue that liberal theorists see community as an aggregate of individuals, and nothing more • They argue that the consequence of understanding the community as made up merely of separate individuals, ie as individual “rights holders”, is that it dampens the conditions to debate the common life that the rights holders share. • “The difficulty with this individualistic ideology is that it ignores and suppresses actual human experience. Individuals are located in history, within a context of allegiances. They are not abstract or bloodless, but are in part constituted by their social context. To divorce individuals from this structure of allegiances is to rob them of the ‘railings to which [individuals] can cling as they walk into the midst of their social lives.”

21. Comments • Is a social collective more than the sum of its parts? Does it have a separate identity? • Hutchinson and Monahan make a statement about the “human experience”. Do you agree that this is an accurate claim? • Does human rights talk prevent or distract individuals from talking about their social context or the common good?

22. Waldron… (again) • Contemporary liberal rights theorist • “When Justice Replaces Affection” • A defence of liberal human rights theories. • Waldron argues that a liberal theory of human rights is justified because it provides: • A safety net, and • New possibilities for social mobility

23. Waldron • Rights provide a safety net: • acknowledges the need for community and attachments and, • that rights cannot create, or represent those important relationships of affection (ie while marriage is a contract the affection between the parties is not created through the establishment of legal rights), and • That rights are indeed a language, when used, which signals the engagement hostilities between individuals (ie conflict), BUT • Rights are the fall back option when mutual affection disappears, in order to provide security to vulnerable parties. • And futher, rights may even be considered to be a condition which enables the development of more intense engagement.

24. Waldron • Rights facilitate social mobility: • Rights provide a legal framework that transcends communities and protects the ability of individuals within communities to leave and forge new interpersonal and community relationships. • Further, while rights do not replace affection, they are important because not all relationships need to be ones of affection. For eg, rights create other productive relationships between strangers, eg market relationships.

25. Waldron • Rights, individuals and communities • Waldron acknowledges that individuals are situated in society, and that rights cause conflict • However, he also argues that individuals are not completely determined by their society, so • They do have some capacity form a critical perspective on the common goods and the common identity. • “Though we live in and for communities of one sort or another most of the time, our communal attachments are never so remote from our capacities as conscious, articulate, thinking, choosing and creating beings that we cannot subject them to scrutiny and considerations. Rights as fallbacks give us the vantage point from which that can be done.” p389 • Moreover, while rights are a language of conflict, they are also generative of change.

26. Comments • Seems to partly respond to the criticisms of liberal theories of rights raised by communitarians. • Seems also to make room for social and cultural contingency in rights, ie not based in truths about either society or human nature • But, he is still committed to a view that a person can ultimately withdraw, leave a community. • Is this possible? If not, does it create some problems for Waldron’s argument?

27. Credits Images sourced from various public web pages for educational use only.