The American Language of Rights.

• Author: Rakove, Jack N.
• Position: Review

THE AMERICAN LANGUAGE OF RIGHTS. By Richard A. Primus. Cambridge, Eng.: Cambridge University Press, 1999. xiv + 262 pp. $54.95.

In this new addition to the ongoing debate over "rights talk," Richard Primus uses a set of historical case studies to criticize the writings of leading contemporary philosophers who assume that rights have an ontological status independent of the particular historical and political contexts in which their nature and extent are debated. Rights talk is best understood, Primus suggests, as a social practice in which substantive political commitments and the identification of particular adversities unleash a process of "concrete negation" that seeks both to manipulate and transform existing ideas of rights. Professor Rakove and Ms. Beaumont argue that Primus uses his historical case studies effectively to challenge the idea that rights have a fixed, ontologically independent status, but they question whether, in emphasizing the elitist, trickledown nature of rights talk, he overlooks how much rights talk depends on the existence of a robust vernacular idiom.

Rights have been a staple of Anglo-American law and politics since at least the seventeenth century. Prior to the great constitutional quarrels of the Stuart era, the word right itself apparently lacked the rhetorical punch it then acquired and has since wielded. Liberties and privileges were the preferred terms to describe the claims that we now casually group under the heading of rights,(1) and insofar as these terms denoted powers or exemptions vested in certain classes of citizens or institutions at the sufferance of the state, rather than inherent attributes or properties of autonomous individuals, we could at least ask whether the modern concept of a right yet existed, or when it first emerged in recognizably modern form. There is no dispute, however, about the authority that the concept of rights has wielded since. Once the term became firmly entrenched in the Anglo-American political vocabulary, as it clearly was by the era of American colonization,(2) there was no dislodging it from common parlance or cabining its supple and inflationary usage.

Even so, consciousness about the problems that the practice of claiming rights poses--as distinguished from controversies about particular rights--seems to be a fairly recent phenomenon, though not one that is difficult to explain. It is hardly surprising that the rights-oriented jurisprudence and legislation of recent decades have generated critiques of "fights talk" like that expressed in Mary Ann Glendon's trenchant work of that title, which is concerned with explaining why the recourse to rights in America, as opposed to other liberal democracies, is distinguished "by its starkness and simplicity, its prodigality in bestowing the rights label, its legalistic character, its exaggerated absoluteness, its hyperindividualism, its insularity, and its silence with respect to personal, civic, and collective responsibilities."(3) Nor is it all that difficult to understand what the historian Thomas Haskell has described as "The Curious Persistence of Rights Talk in the `Age of Interpretation,' which aptly asks why rights talk, with its dependence on a belief in "the existence of an objective moral order accessible to reason," continues to flourish when dominant intellectual trends rest on exactly the opposite assumption.(4) Whatever philosophical puzzles may becloud our understanding of rights, the reasons why fights talk remains so familiar and robust an idiom are essentially political and rhetorical, not metaphysical in nature. The prominence of rights in the American imagination stems from their force as tools of moral and political suasion rather than from their abstract exquisiteness or ontological truth.

Yet if it is unsurprising that talking about why we talk about rights has become a subject of some importance, we need all the help we can get in sorting out the problems that any serious, sustained analysis of the fights talk phenomenon entails. Richard Primus's valuable contribution to this debate is to develop a historicist critique of a philosophical problem. In an effort to shift the terms of contemporary debate, which, in academic philosophy and political theory, frequently revolves around attempts to construct an ideal system or conclusive list of fights, or to identify the formal properties of rights or rights-bearers, Primus turns to history to demonstrate that fights talk--even as practiced by our greatest philosophical adepts--is best understood as a social practice shaped by political concerns and exigencies.(5) Our review will track the organization of his book, examining first his general critique of the current literature on rights and then considering how Primus uses the evidence of the past to demonstrate how different languages of fights have operated at particular moments of American constitutional history.

Primus proposes to analyze the "place of rights in American political debate" by asking "how politicians, lawyers, and philosophers ... have actually used the language of fights."(6) Primus has two lofty goals. The first is to bring rights theories and practice closer together and to change the way we understand rights by replacing abstract definitions deduced from universal first principles with more precise descriptions of fights as the product of social practice and linguistic usage. Primus's second aim is to use this conception of rights as social practice to illustrate how the corpus of American rights has changed over time, and thereby revise our understanding of definitive "moments" in the history of our rights.

Primus laments that so many participants in the current debate treat the language of rights primarily as a means of adjudication, overlooking the equally significant function of rights as rhetorical political tools. Rights are not merely a cerebral bauble of law and philosophy, for appeals to fights also exert immense political force. Throughout our history, Americans of all persuasions have asserted fights in the service of competing political agendas. By analyzing these claims as a vein of political discourse rather than as an adjudicatory tool, Primus believes it is possible to discern patterns that will clarify the meaning of various fights claims.(7)

To map his own theory, Primus starts from the basic premise that rights claims are inherently normative, then advances by drawing heavily from the work on conceptual change advanced by Quentin Skinner and the Cambridge school of intellectual historians.(8) He offers a straightforward argument: "the major pattern of development in American rights discourse has been one of concrete negation: innovations in conceptions of rights have chiefly occurred in opposition to new adversities, as people articulate new rights that would, if accepted, negate the crisis at hand."(9) Thus, when the normative commitments that underlie rights discourse change, new rights, and even new theories of rights, emerge to embody those commitments.(10) Reduced to formula, Primus's thesis runs roughly like this:

Old Rights System + New Crises or Commitments = New/Synthesized Rights System

This formula, of course, represents a readily recognizable permutation of the neo-Hegelian dialectic of thesis-conflict-synthesis,(11) or paradigm shift, that acts as the engine in all standard theories of conceptual change such as in Thomas Kuhn's explanation of scientific revolutions.(12) It is an appealing model in that it seeks to express the dynamic and reciprocal elements of the relationship between the language of rights and political history.

In his opening chapter, Primus calls attention to the sharp divergence between rights theory and rights practice in order to identify a central mistake in the typical analysis of rights--the tendency to argue questions of rights as matters of definition and form.(13) Because American rights discourse is an ongoing social practice and competitive game, not a rigidly philosophical or merely academic endeavor, it works quite differently from the formal theories of rights developed by legal and political philosophers such as Ronald Dworkin, Neil MacCormick, Joel Feinberg, or Joseph Raz.(14) This discrepancy suggests that we should shift our focus away from the formal or analytic properties of rights in favor of looking at the role of rights in political dialogue.

The problem with philosophers of rights, Primus argues, is that their theories tend to treat formal definitions of rights as rules that pre-exist the game of rights debate, when in fact they are moves within the game.(15) The discourses of law and politics are not like a chess game: The rules are not fixed prior to the game. Rather, the framing of rules--the determination of what constitutes an effective political move--is a primary goal of the game. Because arguing about the existence or authority of a particular right is not a purely descriptive matter, like arguing about whether the rules of chess permit a bishop to take a queen, any attempt to draw conclusions about the substance of rights from definitions of their form is inherently normative.(16) Primus further argues that rights theorists who rely on definitions to do the heavy lifting in their arguments about the proper content of rights are themselves engaging in a standard feature of all rights discourse--the appropriation of rights language to cloak and thereby advance a set of substantive political commitments.(17)

In this respect, then, academic and political discourses on fights converge; seemingly academic writings turn out to be a forum for fights discourse much like any other. Claims of fights, whether made by academics, philosophers, politicians, or political actors, are all "inescapably normative, because fights are always interpreted according to some vision of the good or set of substantive political commitments."(18) On this point, Primus is in...