Customer Reviews

Rights Talk: The Impoverishment of Political Discourse

5 star:		(4)
4 star:		(3)
3 star:		(0)
2 star:		(0)
1 star:		(0)

 

 

Rights talk is ubiquitous in American culture; from the highest political office holder to the lowest convenience store clerk, people invoke rights, often in absurdly stark and overbroad forms, as a way of expressing their desires, interests, and moral and political views. Often such rights claims lead people to say things that are clearly false and/or absurd, such as that they have the right, without qualification, to do whatever they want whenever they want. This custom is made all the more curious by the fact that people seem to know so little about rights themselves. What are rights? Where do they come from? Who has what rights, and how can you tell? When posed with such questions even some rights theorists fall silent.

The curious nature of American rights talk has led an increasing number of people to reject the existence of rights altogether. Rights have, of late, come under serious sustained attack from a variety of quaters, and it's hard not to feel a little sympathy with such critiques. Talk to a guy who thinks you have an absolute sui generis right to own a sub-machine gun a few times, and you will begin to understand why Bentham called rights "nonsense on stilts." Still, rights, and rights talk, lay at the heart of our republic, as well as of the recent attempts to hold foreign dictators to universal moral standards. It would be most unfortunant if a concept that has done so much good in the world turned out to be incoherent.

According to Glendon's book, the problem it not with rights themselves, but with what she calls the "American rights dialect," the particular way in which we speak of rights here and now. She argues that contemporary American rights talk is separated both from the European tradition, and from the tradition of the founding fathers, not only in its simplicity, but also in its extreme individualism, absoluteness, insularity, and inarguability. American rights talk ignores the connections (logical and moral) that rights have with duties, it denies the social and communal aspects of people, and it rejects the need for rights to be limited according to various circumstances. In effect American rights discourse has become a parody of itself, leaving it vulnerable to attack from those who would deny rights altogether.

It's clear from Glendon's other works (e.g. A World Made New) that she does believe in rights. While this book is largely critical of rights talk in its current form, it should be viewed, I think, fundamentally as an attempt to restore rights to their proper place in our political framework, lest we get fed up with the whole thing and throw out baby with bathwater. For this reason I would recommend this book both to advocates and opponents of rights. The former will emerge from it with a fuller deeper understanding of how rights work, while the later may discover that there is more to rights than they had previously thought.

Among other fascinating points, Professor Glendon maintains that there has been a peculiarly American tendency to exaggerate two rights, to the detriment of others:
* "From the very beginning, the absoluteness of American property rhetoric promoted illusions and impeded clear thinking about property rights and rights in general" (p. 25).
* "Though the 'preferred' rights change from time to time, American legal discourse still promotes careless habits of speaking and thinking about them....exaggerated absoluteness of our American rights rhetoric is closely bound up with its other distinctive traits - a near-silence concerning responsibility, and a tendency to envision the rights bearer as a lone autonomous individual....why does our rhetoric of rights so often shut out relationship and responsibility, along with reality?" (pp. 41 - 46)
* "The major impetus for recognizing a legal right to privacy was the invention, in the nineteenth century, of instantaneous photography, and the development of rapid means of communication....In 1973, the Supreme Court of the United States held in Roe v. Wade that the...right of privacy was 'broad enough to encompass a woman's decision whether or not to terminate her pregnancy'....In the abortion cases that followed and enlarged the scope of Roe, privacy began to show the same thrust toward absoluteness that had characterized property rights in an earlier era....In the United States today,...poor, pregnant women...have their constitutional right to privacy and little else. Meager social support for maternity and childraising...leave such women isolated in their privacy" (pp. 49 - 65).

One section of Professor Glendon's book is reminiscent of the final episode of "Seinfeld," where Jerry and friends are prosecuted for failing to come to someone's aid:
* "Our habitual silences concerning responsibilities are...apt to remain unnoticed....the authors of the leading treatise on torts categorically declare that one has no legal duty to come to the aid of another person in mortal danger....An Olympic swimmer out for a stroll walks by a swimming pool and sees an adorable toddler drowning in the shallow end. He could easily save her with no risk to himself, but instead he pulls up a chair & looks on as she perishes. When beginning law students learn that the despicable athlete was perfectly within his legal 'rights,' their reaction is generally one of surprise and disbelief....In a long line of decisions, bystanders have consistently been exempted from any duty to toss a rope to a drowning person, to warn the unsuspecting target of an impending assault, or to summon medical assistance for someone bleeding to death at the scene of an accident" (pp. 76 - 79).

Professor Glendon's preface could well have served as the conclusion:
* "A near aphasia concerning responsibilities makes it seem legitimate to accept the benefits of living in a democratic social welfare republic without assuming the corresponding personal and civic obligations....what is needed is not the abandonment, but the renewal, of our strong rights tradition....The prospects for such a project are not especially bright....the seedbeds of civic virtue (as many political theorists refer to families, religious communities, and other primary social groups) are not in peak condition" (pp. xi - xii)

I very much enjoyed reading this book & I think I gained much from doing so. Although a lot of space is devoted by the author to anticipating & shooting down arguments those who don't agree with her might offer, she does get her points across rather well. She has a lot to say about the fact that lawyers & judges seem to love talking about rights while they have little to say about obligations. Some of the facts she reports are shocking to read & make it very easy to understand why so many people have so little respect for the legal profession. I must confess I had great difficulty in trying to paraphrase Ms Glendon's assertion, maybe because, as Ms Glendon explains, our court decisions entered a different world, so to speak, in the 1960s period. I strongly recommend the book for anyone interested in the humanities.

Glendon puts into perspective the overuse of the idea of individual "rights" and how the emphasis in our legal system not only leads to absurdity, but to the inability of society to discuss very real social problems.
As she puts it (I paraphrase) this discourse is based on the way few men, and fewer women, actually live. For we all live in a complex milieu of family and friends and neigbors, not in isolation.
I especially like her dissection of Rousseau's "primitive man" and how this idea has become the distorted, (again I paraphrase) insisting that when these philosophers discussed the freedom of the primitive man, they somehow neglected to realize that they never bothered to see how the primitive woman or child fit into his life--or into their own life.
This argument is the basis for communitarian ideas, not socialism.
And in an "either or" type argument too often seen in discussions of rights (society versus individual rights) she posits a "but": the idea of individual rights in a complex society where these things are balanced by others, not eliminated.

Mary Ann Glendon, professor of Law at Harvard University, one of the most eminent scholars in contemporary America, in this book writes about the legal cultural tradition of the United States, up until the actual absolutization of the rights claim, sign of a rising individualism that is part of the rich US tradition but that it's a serious challenge for our actual democracy. A necessary lecture for every American that takes care of our common life.

This is going to be short.

I just want to say that Glendon does a great job of highlighting what our problem is. Ever since reading Glendon I literally cringe every time I hear someone assert their rights without considering the responsibilities those rights entail. Too often in my life have people used their "rights" to justify cruel actions and behaviors. For example, people using the freedom of speech to back up hateful, aggressive, poisonous statements.

Glendon does a great job of pinpointing why the way we speak is hazardous to us as people. It'll change the way you understand your rights, and hopefully motivate you to attach responsibilities to the rights you've been given, whether the responsibilities are explicitly stated or not.

Harvard's Mary Ann Glendon provides one of those rare insights into why we are the way we are, exposing what is patently aberrant when externally viewed, axiomatic by force of habit, with an educational system catering to consumerism. Central is our language (how we view our world and us in it) through rights talk. American rights talk is stark, simple, polarizing, legalistic, excessively bestowing the rights label with exaggerated insular absoluteness of hyper-individualism expressed as unbounded wants and desires with utter silence on personal, civic or collective responsibilities. Nearly every social controversy is framed as a clash of absolute rights, with self-correction denied and compromise unlikely in our winner take all arrangement. What Hamilton said would happen, happened, and with a vengeance. While the Bill Of Rights (he opposed) was to clarify what the federal government would not do, it has been transformed as a route to governmental expansion via what government must do for us. "Rights" are now paramount and the touchstone of legitimacy. (Just listen to the list of rights we never knew we had in our current presidential debates.)

Glendon illuminates a turn taking place in the 50's when principle focus of the Court was not personal liberty but the division of authority and allocation of power between States and the national government. Congressional legislation (subject to the people's will) during the New Deal shifted to the Supreme Court (protected from the people's will) and their creation of new or expanded rights with the stroke of a pen - a fundamental swing away from the people and process of self-governance. The "test case" became a replacement for time consuming political engagement. The results of which might go either way depending on the Court's composition - liberal or conservative - as Madison said, a tyranny of nine instead of one is a tyranny all the same.

Glendon elucidates our legal system's inability to extrapolate long-term effects of its decisions, and unable to recognize entities other than individuals, corporations and States, i.e. communities are invisible (ditto Adam Smith & economic models). Not infrequently, opinions of Court justices sound as if from another galaxy not bothered by common sense. America's emphasis on Locke's property language is contrasted with Europe's Rousseauian (though equally idyllic) perspective (Rousseau wasn't any more complete than Locke), with Europe often appearing a good deal more rationally conditional than absolutist America. Interestingly, ideas in political philosophy can be seen to display creative inventiveness not unlike that found in science and technology, allowing new results from old principles or discoveries of alternate ways to interpret them. And like technology's creation of penicillin or the atomic bomb, outcomes may or may not be positive. To this reader it was a shock (and gift) to find rights do not deserve the altitude they've acquired in America. An excellent book every politician and lawyer should take intravenously, before they bury us all.