Rights: An Essay in Informal Political Theory

AuthorMark Tushnet
Published date01 December 1989
Date01 December 1989
DOIhttp://doi.org/10.1177/003232928901700401
Subject MatterArticles
Rights:
An
Essay
in
Informal
Political
Theory
MARK TUSHNET
I.
IN1RODUCTION:
THE
SCOPE
OF
THE
ESSAY
THIS
essay
offers
a
perspective
on
questions
of
human
rights,
drawing
from
sociology,
law,
and
political
theory.
In
Part
II,
I
discuss
the
origins
of
the
modem
concept
of
rights,
as
well
as
what
has
been
called the
critique
of
rights,
a
movement
within
critical
legal
studies
that
challenges
the
efficacy
of
appeals
to
rights
by
subordinate
groups.
In
Part
III,
I
examine
and
respond
to
minority
and
feminist
critiques
of
the
critique
of
rights,
and
in
Part
IV,
I
deal
with
a
possible
reconstruction
of
the
idea
of
rights,
one
that
develops
the
concept
of
group
rights
to
provide
a
conceptual
foundation
for
a
program
of
political
and
economic
decentralization.
Defining
the
boundaries
of
this
enterprise
is
crucial
to
offering
its
substantive
arguments.
The
so-called
critique
of
rights
has
been
associated
with
the
so-called
school
of
thought
called
critical
legal
studies,
which
is
most
commonly
thought
of
as
a
movement
in
jurisprudence.
However,
I
am
acutely
uncomfortable
with
I
would
like
to
thank
the
A.
Eugene
Havens
Center
at
the
University
of
Wisconsin
for
inviting
me
to
present
the
lectures that
form
the
basis
for
this
essay,
and
the
participants
in
the
discussions
surrounding
the
lectures,
and
especially
Joel
Rogers,
fortheir
comments
on
them.
In
addition,
portions
of
this
essay
were
initially
presented
at
conferences
at
Osgoode
Hall
Law
School,
York
University,
and
at
Williams
College.
On
those
occasions
too
I
received
comments
to
which
I
have
tried
to
respond
in
this
essay.
Finally,
I
should
thank
Scott
Altman,
Lisa
Brush,
Jennifer
Jaff,
and
Guy
Perez
for
their
comments
on
drafts
of
the
essay.
404
locating
my
own
work,
which
is
properly
labeled
part
of
critical
legal
studies,
in
the
domain
of
jurisprudence
because
my
interests
and
methods
differ
from
those
of
the
professional
philosophers
who
are
the
principal
occupants
of
that
domain.
At
the
same
time,
of
course,
there
is
obviously
some
relation
between
the
critique
of
rights
and
matters
that
have
concerned
professional
philosophers.
Drawing
on
a
thought
expressed
by
the
political
theorist
John
Dunn,
I
have
decided
to
label
my
work
as
located
in
the
domain
of
informal
political
theory.2
By
informal
political
theory,
I
mean,
first,
that
the
subject
deals
with
some
aspects
of
what
is
usually
considered
to
be
political
theory-the
relation
between
the
individual
and
the
state,
for
example,
and
the
institutional
mechanisms
by
which
the
things
that
people
value
can
be
promoted.
I
mean,
in
addition,
that
the
subject
is
considered
without
drawing
on
the
entire
apparatus
of
formal
political
theory,
especially
the
concern
in
formal
political
theory
with
the
location
of
arguments
in
a
historical
tradition.3
Finally,
I
mean
that
the
subject
is
considered
primarily
from
the
ground
up,
that
is,
from
the
actual
operation
of
political
institutions,
rather
than
from
the
top
down,
from
the
specification
by
political
theorists
of
certain
general
proposi-
tions
about
political
life.
In
particular,
I
will
be
dealing
with
questions
about
how
political
actors,
including
judges,
actually
use
words
like
rights
rather
than
with
questions
about
how
such
words
can
best
be
defined
in
relation
to
other
words.4
In
my
view,
informal
political
theory
helps
us
understand
what
is
actually
going
on
in
political
life
when
words
associated
with
more
formal
approaches
to
political
theory
are
deployed
in
political
discussions.
5
If
one
of
the
boundaries
of
my
inquiry
is
its
informality,
another
is
the
criterion
I
will
invoke
to
determine
whether
some
specification
of
rights
is
interesting
or
useful.
I
began
thinking
about
the
need
for
such
a
criterion
because
of
my
puzzlement
over
rejections
of
the
critique
of
rights
that
said
the
critique
appeared
to
threaten
religious
toleration
(without
further
defining
what
constitutes
tolera-
tion),
freedom
of
expression
(without
further
specifying
what
constitutes
viola-
tions
of
freedom
of expression),
and
the
proposition
that
there
is
a
sphere
of private
activity
into
which
public
power
ought
not
intrude
(without
further
specifying
where
the
boundaries
between
those
spheres
are).6
I
propose
that
we
seek
guidance
on
questions
that
have
recently
arisen
or
that
are
likely
to
arise
in
the
future
with
respect
to
human
rights.
I
would
contrast
to
that
an
approach
that
established
that
the
regime
under
which
the
religious
wars
of
the
sixteenth
and
seventeenth
centuries
occurred
is
ruled
out
by
concepts
of
rights.
More
interesting
would
be
an
approach
that
rules
out
Stalinism
and
nazism
as
political
institutions
consistent
with
human
rights,
because
those
are
institu-
tions
that
advanced
western
societies
have
experienced
in
this
century.
Finally,
I
should
simply
note
that
I
am
puzzled
about
the
value
of
an
approach
that
fails
to
adjudicate
between
laissez-faire
liberalism
of
the
sort
associated
with
the
names
of Herbert
Spencer,
Robert
Nozick,
and
Richard
Epstein,
and
democratic
405
socialism
of
the
sort
associated
with
modem
Scandinavian
democracies.
I
1
suspect
that
the
best
we
will
be
able
to
do
is
to
have
an
idea
of
rights
that
rules
out
regimes
that
fall
outside
that
range
of
possibilities,
and
then
wonder
about
the
utility
of
an
idea
of
rights
that
has
so
broad
a
range 9
II.
THE
ORIGIN
AND
CRITIQUE
OF
RIGHTS
The
term
rights
is
used
in
political
and
legal
discussions
in
a
number
of
ways.
Sometimes
the
term
refers
solely
to
rights
that
are
or,
in
the
user’s
view,
should
be
guaranteed
by
the
Constitution
and
therefore
protected
by
the
courts.
At
other
times
it
refers
to
demands
felt
to
be
particularly
urgent.
Still
another
use
is
to
identify
it
with
relatively
fixed
or
predetermined
rules
(usually
rules
of
law,
as
distinguished
from
relatively
flexible
standards).
In
developing
a
critique
of
rights,
I
will
move
among
these
different
uses
relatively
freely,
because
their
actual
use
in
political
discussions
is
equally
flexible.
Yet each
use
gains
some
credibility
from
the
others,
and
an
overall
critique
of
rights
must
address
them
all,
although
not
all
of
the
aspects
of
the
critique
will
be
relevant
to
every one
of
the
uses
of
the
term.
A.
The
Origin
of Rights :
Analytic
Models
How
could
the
idea
of
rights
function
to
promote
what
its
proponents
value?
We
can
identify
two
models
for
the
way
in
which
appeals
to
rights
operate.
1.
Rights
as
political
bargains
It
will
be
easier
to
understand
the
first
model
if
we
specify
somewhat
unnaturally
that
we
are
dealing
with
a
society
that
has
three
social
orders.
First
is
a
unitary
subordinate
group,
then
a
superior
group
that
is
itself
divided
into
one
segment
that
holds
effective
power
at
the
time
we
are
considering,
and
another
that
is
understood
within
that
society
to
be
capable
of
holding
power
and
that
desires
to
do
so.
When
the
subordinate
group
appeals
to
an
idea
of
rights,
it
can
be
attempting
to
forge
an
alliance
with
this
second
segment
of
the
superior
group.
That
is,
the
subordinate
group
offers
an
implicit
political
bargain:
&dquo;You
recognize
our
rights,
and
we
will
lend
our
support
to
you
in
your
effort
to
displace
the
existing
group
of
power
wielders.&dquo;
&dquo;
Several
historical
examples
of
this
model
of
appeals
to
rights
suggest
them-
selves.
The
most
recent
is
the
use
of
the
appeal
to
rights
in
the
early
stages
of
the
modem
civil
rights
movement. 10
That
early
stage
succeeded,
in
part,
because
it
constructed
an
alliance
between
the
black
community
and
national
elites
who
were
concerned
about
the
damage
segregation
was
doing
to
the
national
interest
in
the
Cold
War
era,
primarily
in
terms
of
adverse
international
publicity,
but
secondarily
in
terms
of
the
impairment
of
national
productivity.
They
were

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