Identities, Politics, and Rights

Editorial Introduction

Editorial Introduction Austin Sarat and Thomas R. Kearns As is now widely recognized, the subject of rights occupies an important place in liberal political thought.1 Various strands of liberalism find the justification for rights in nature, in utility, or in the demands of justice and fairness,z but, throughout, liberal discourse about rights assumes two things. First, rights are assumed to be the entitlements of persons whose status as persons is fixed and from which rights are said to issue.3 Rights-based theories "presuppose and protect the value of individual thought and choice" (emphasis added)." The essential attributes of persons are, in this account, ahistorical and universal; as a result, humans are, in their essential attributes, alike. Rights are said to be logically entailed by a recognition of those attributes. Thus, as Alan Gewirth argues, "Human rights are based upon and derivative from human dignity. It is because humans have dignity that they have . . . rights."5 Or, as George Kateb puts it, 1. George Kateb, "Democratic Individuality and the Meaning ofRights," in Liberalism and the Mural Life, ed. Nancy Rosenblum (Cambridge: Harvard University Press, 1989). Also Colorado College Studies, The Bill ofRights and the Liberal Tradition (Colorado Springs: Colorado College, 1992). 2. Douglas MacLean and Claudia Mills, eds., Liberalism Reconsidered (Totowa, N.J.: Rowman and AIIanheld, 1983). 3. A. I. Melden, Rights and Persons (Oxford: Basil Blackwell, 1977), chap. 6. See also Michael Meyer, "Dignity, Rights, and Self Control," Ethics 99 (1989): 520. 4. Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University Press, 1977),172. 5. Alan Gewirth, "Human Dignity as the Basis of Rights," in The Constitution of Rights: Human Dignity and American Values, ed. Michael Meyer and William Parent (Ithaca: Cornell University Press, 1992), 10. See also Joel Feinberg, "The Nature and Value of Rights," in his Rights, Justice, and the Bounds of Liberty (Princeton: Princeton University Press, 1980), 151. 2 IDENTITIES, POLITICS, AND RIGHTS Public and formal respect for rights registers and strengthens awareness of three . . . facts of being human: every person is a creature capable of feeling pain, . . . is a free agent capable of having a free being . . . , and is a moral agent capable of acknowledging that what one claims for oneself as a right one can claim only as an equal to everyone else.... Respect for rights recognizes these capacities and thus honors human dignity.6 The second assumption of the liberal theory of rights is that rights stand outside of, and above, politics, where politics is understood in terms of the play of group preferences or state policy. One makes appeals to rights as a defense against those preferences and policies, to hold them at bay. The force of rights depends neither on the sentiments of electorates nor the desires of political elites. "The perspective of rights-based individualism," Kateb notes, "is suspicious of the political realm."7 Rights are, in liberal theory, valuable since they entitle their holders willy-nilly to particular kinds of treatment . They provide an escape from the political realm because, in Dworkin's famous characterization, rights are "trumps."s If they are taken seriously, rights stop political argument and end political contest , and the recognition of a right removes the disputed claim from the political process. Thus, if taken seriously, rights make "the Government 's job of securing the general benefit more difficult and more expensive."9 The essays in Identities, Politics, and Rights take up these two central assumptions of the liberal theory of rights by examining the extent to which rights constitute us as subjects and are, at the same time, implicated in political struggles.10 In contrast to the liberal view in which rights are treated as a "unitary, universal analytic move and 6. George Kateb, The Inner Ocean: Individualism and Democratic Culture (Ithaca: Cornell University Press, 1992 ), 5. 7. Ibid., 25· 8. "Rights," Dworkin suggests, "are political trumps held by individuals. Individuals have rights when, for some reason, a collective goal is not sufficient justification for denying them what they wish, as individuals, to have or to do." Taking Rights Seriously, xi. 9. Ibid., 198· 10. For an interesting example of this view of rights see Neal Milner, "Ownership Rights and the Rites of Ownership," Law and Social Inquiry 18 (1993): 227. Also Mari Matsuda, "Law and Culture in the District Court of Honolulu, 1844-45: A Case Study of the Rise of Legal Consciousness," American Journal of Legal History 32 ft9B8): 16. [3.145.186.173] Project MUSE (2024-04-26 02...