Rights and Responsibilities.

• Author: Lee, Evan Tsen
• Position: Review

RIGHTS AND RESPONSIBILITIES. By Leon Trakman(1) and Sean Gatien.(2) University of Toronto Press. 1999. Pp. 286. $24.95.

There is a widespread perception that America is obsessed with rights. Leftists and conservatives both decry a culture whose first instinct in solving any social problem is the assertion of a right.(4) Left academics lament the system's reliance on the concept of rights to protect or advance the social and economic welfare of the oppressed.(5) The assertion of rights, they say, is "alienating."(6) Social conservatives want America to turn to the nuclear family, the church, and the local school board as means of settling disagreements about values.(7) Both Left and Right call for revitalizing a strong form of community; never mind that each's vision of community may be the other's worst nightmare.(8)

But rights discourse is proving remarkably resistant to criticism from both sides. It runs deep in our legal culture, and neither side wants to forego its pet claims (fights to `life, property and bear arms on the Right; rights to equality, reproductive freedom, and government entitlements on the Left). There is also the problem of what would replace the liberal, individual-centered, state. To enforce community solidarity, we must have some kind of consensus about fundamental values, which would seem difficult to achieve in a nation of a quarter billion people descended from dozens of starkly different cultures. Then there are problems of implementation. America's public and private sectors are both largely predicated on the supposed incorrigibility of individual and group self-interest. Replacing the infrastructure and language of the liberal, pluralist state would be a daunting task indeed.

In Rights and Responsibilities, Leon Trakman and Sean Gatien announce from the start that they are not out to trash liberalism or its fights discourse.(9) (p. xii) Rather, they seek to create some balance between individual freedoms and community interests.(10) (p. 20) Too often, they say, individual rightholders are permitted to exercise their freedoms in a manner destructive of community interests--for example, by strip mining or clear cutting forests. When by chance another party can assert a countervailing legal fight, the court may actually stop the first rightholder from acting in such a destructive manner. But if no such countervailing right exists, the courts are powerless to stop the destruction.

So existing rights jurisprudence is deficient because it falls short of protecting vital community interests against individual rightholders' destructive acts. There aren't sufficient external impediments to the exercise of fights--such as countervailing rights--to guard these vital community assets. What we need, say Trakman and Gatien, are internal restrictions on the exercise of rights. Such internal restrictions would not be dependent on the inclination or ability of others to come forward and demonstrate countervailing rights. They would, as popular saying has it, come with the territory. Trakman and Gatien call these internal restrictions "responsibilities" and explain the concept as follows:

If the prima facie right is not overridden by external limits, but is shown to have a sufficiently probable and proximate impact that is detrimental to sufficiently important interests, then an internal limit or responsibility is imposed upon the exercise of rights that limits or nullifies these effects. For example, if the exercise of a mining right gives rise to pollution, that right is subject to internal limits that restrict it and, in extreme cases, prohibit its exercise.(11) (p. 65) To take one of Trakman and Gatien's more specific examples, let us suppose that an oil company wishes to explore for oil on land that it owns. Further suppose that Native peoples claim that the exploration will disrupt or destroy their traditional or historical preservation and use of the land. To the degree that the Native peoples cannot assert their own legal rights against the proposed exploration, the courts must determine whether the oil company nonetheless owes certain responsibilities to the Native peoples, such as consulting with them, ascertaining the precise impact of the exploration on their way of life, and perhaps modifying the exploration to minimize such disruption or to...