What’s Wrong With Rights?
We Americans know our rights! At least we talk as if we do, almost incessantly. The language of rights is how we discuss, and perceive, almost everything in our political life. But what guidance do the Bill of Rights or the Universal Declaration of Human Rights offer when it comes to proper healthcare policy, financial and immigration reform, and where and whether to go to war? Is our national “rights dialect” really the best way to talk about the problems we face?
Mary Ann Glendon is not so sure. Glendon, Learned Hand Professor of Jurisprudence at Harvard Law School and one of George W. Bush’s ambassadors to the Holy See, has made notable contributions in her scholarly career to the fields of family law, bioethics, and comparative law. But as a public intellectual her best known interventions have dealt with our national rights talk, a lingo we barely even notice anymore, so thoroughly does it pervade our political life.
In the early 1990s, many American intellectuals were content to declare not just the Cold War but history itself over and done, and liberalism—whether in conservative or social-democratic flavors—to be the only possible path. Amid such smug victory laps, Glendon published Rights Talk: The Impoverishment of Political Discourse in 1991, a critical analysis of our near-exclusive reliance on “rights” as the language of politics. Criticisms of licentiousness and loose morals are as old as the written word, but this was not another Borkian rant about hippie libertines corrupting the nation. Rights Talk was measured, moderate in tone, and therefore all the more incisive.
Rights are essential and they are good, Glendon argues, but they have come to dominate our public discourse in ways that are not healthy. We tend to throw down rights as if they were absolute trumps. But they are not, and must be measured against competing rights, values, and obligations. Rights are by nature individualistic and frequently unable to deal with non-individualist struggles in our social dimension. Rights are legalistic, and the spurious law talk they carry with them has corrupted public debate outside the courtroom, from the town hall to the kitchen table. (Glendon, a bit of a self-loathing lawyer, laments our culture in which public discussion takes law and legalism as the highest authority.)
But the main drawback of rights talk is that it has crowded out other modes of political thought, debate, and even action. Glendon points out how rights-based claims have been powerless to turn back or even slow the dislocation and destruction of formerly thriving communities by both de-industrialization and so-called urban renewal. When a Youngstown coalition of unions and religious groups tried in 1980 to fight further plant closures by haltingly asserting a “community property right” in federal court, the sympathetic judge had no choice but to dismiss their case out of hand and tell them to try the national and state legislatures. A similar coalition in Detroit failed to save the Poletown neighborhood from eminent-domain confiscation, as they could find no rights-based legal claim on which to hang their case.
Even as rights-based claims fail us more and more, they have proliferated in our public discourse. So many relatively new rights, like the right to privacy, derive from property rights, through reasoning that Glendon finds iffy. More specifically, they spring from a peculiarly Anglo-Saxon conception of property rights that runs from Locke to Mill and amplified by Blackstone’s Commentaries on the Laws of England, whose immense prestige throughout U.S. legal history Glendon finds baffling. Rare among U.S. intellectuals, Glendon is not overly worshipful of, or even particularly impressed by, the Anglo-American tradition of liberal political thought, which she calmly points out is not the only game in town.
Instead she casts a longing gaze on the Romano-German traditions of the Continent, where Rousseau and Kant fashioned political theories that acknowledge our species’ fundamentally social character, not just our possessive individualism. The governments and legal systems that draw on this tradition in, say, Germany, are more likely to see rights as balanced against other rights and obligations, including the needs of that non-contracting party called “society.” There is a tighter social contract between capital, labor, and the state, and the civil fabric generally has a closer weave.
By now it should be clear that Mary Ann Glendon is no libertarian. For this thinker there most certainly is such a thing as society, and our courts and legislatures would do well to take it into account. But unlike most of her fellow communitarians—a label Glendon does not embrace—she dares to take her analysis where most of us spend half our waking hours: the workplace. Glendon faults the U.S. as being practically unique among developed nations in not having any legislation to deal with the social consequences of plant closures and economic dislocation.
Reading Rights Talk, we realize how virtually every political tribe in America across the left-right spectrum is in thrall to the rights dialect. The Tea Party tends to reduce politics to property-rights fundamentalism whereas liberal technocrats create new “positive” rights—to housing, to healthcare—for an expanded welfare state to service and manage. To envision a politics that isn’t rights-based almost seems as difficult as fishes dreaming of fire.
But ‘twas not ever thus: Glendon harkens back to the New Deal era when economic reforms were effected by legislation under the rubric of anti-trust and regulatory law, not with lawsuits litigated under constitutional law. She also performs side-by-side comparisons of important U.S. Supreme Court cases with analogous foreign court decisions to see how other traditions manage to do just fine without turning to absolute rights at every pass.
Glendon is by no means alone in underlining the limitations of our national rights talk. Labor historian Jefferson Cowie has unhappily noted how the individualistic “rights consciousness” displaced the collective struggle for economic rights in the “Me decade” of the 1970s. Stanford law professor Richard Thompson Ford has lamented that 20th-century civil rights laws and lawsuits are largely useless for dealing with ongoing employer and police discrimination against women and racial minorities. In France, the birthplace of les droits de l’homme, the question of rights’ proper role in politics has been a major topic for three decades, with a rich debate across a highly variegated political gamut of Socialists, liberals, Gaullist nationalists, and Catholics of both right and left.
Glendon herself is not easily classified in American political zoology. She represented the Vatican at the United Nations’ 1995 Beijing Conference on Women, the first time a Catholic delegation had been led by a woman. She did not see that confab as a popularity contest to be won, and she declared that “the Holy See in no way endorses contraception or the use of condoms, either as a family planning measure or in HIV/AIDS prevention programs.” (Glendon also declined to accept a prestigious honor at Notre Dame University in 2009 to protest its hosting of the abortion-rights supporting president of the United States as commencement speaker.) She is a leading voice at the right-wing journal of religion and society First Things. So far, so conservative Catholic.
But then Glendon is also a cautious supporter of positive rights—to employment, housing, medical care—that although written into the constitutions of many modern, wealthy democracies, are often seen as socialist in the United States. Whereas so many Federalist Society-types get apoplectic at the suggestion that foreign law might have some informative value in our own courts, Glendon blasts the growing parochialism of American jurisprudence, insisting that we ignore other legal traditions at our peril and pointing out that our Constitution is no longer the dominant role model abroad that it once was.
Perhaps Glendon’s illustrious career as a comparative-law scholar—she authored a widely used textbook on the subject—has made her irredeemably cosmopolitan. Comparing one thing to another often draws the accusation of “relativism” when in fact it is the only path towards universalism. How else can universality be induced except by examining, and comparing, different laws, norms, cultures? Her next major book on rights deals with exactly this issue.
Ten years after Rights Talk, Glendon published A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights. Unlike her previous sally, this was no skeptical critique but an inspiring narrative of progress—a hymn to human rights. The tale begins in the ashes of World War II, when a young United Nations convened politicians, jurists, and philosophers to rebuild a better legal order in which the horrors of genocide would never recur. The various parties aimed to infuse the document with their own political agendas: anti-colonialism, revolutionary socialism, imperialism, liberalism.
That a common statement of shared humanitarian aims would ever even get off the ground was never a sure thing. How could world leaders of radically different worldviews—Communist, liberal, Muslim, post-colonial Hindu—agree on anything? Could there be any meaningful enforcement of these rights? (The Soviet Union and the United States wanted no such thing.) In what ultimate authority were these rights vested? (The delegates left this as vague as possible, as agreement over fundamentals was impossible among such disparate worldviews.). Glendon gives us a doctrinal and legal tour of these negotiations, filled with great personalities—René Cassin, P.C. Chang, John Humphrey, and Roosevelt herself—with even an occasional glimpse at the interstate Realpolitik lurking in the wings.
For all her anti-legalism, Glendon accords the Universal Declaration, adopted by the UN General Assembly in 1948, a significant degree of agency in the secular trend toward greater respect for human rights over the postwar period, cresting in the early 1990s in Eastern Europe, South Africa, and Latin America with the collapse of the USSR, apartheid, and various dictatorships. Such progress, she admits, is because of the document’s gradual and partial incorporation into national legal systems thanks to domestic political pressure. Still, the declaration’s soaring formulation of universal norms did serve as a pole star for human-rights activists worldwide, Glendon argues. (Not surprisingly, A World Made New has been immensely popular among the predominantly liberal tribe of human-rights professionals.)
How to reconcile these two interventions, one a skeptical critique of the rights dialect, the other a paean to that language’s most ambitious, indeed epic, document? One might assume that these two perspectives are in conflict, but for Glendon there is no circle to be squared.
“In my view, the two books are complementary,” she told me recently. “Both were aimed at bringing out what is highest and best in the post-World-War II human-rights project. In both I began by facing the facts: the language of rights, for better or worse, now provides the principal framework at home and abroad for discussing weighty questions of justice and injustice.”
After all, she says, to describe the boundaries of an idea or a movement is not to belittle it, for all ideas have their limits. “Human rights principles are not, and cannot be, a complete map of the just society. I think that better ways to discuss these kinds of matters would emerge naturally if we could expand ways for citizens themselves to have more of a say in setting the conditions under which they live, work, and raise their children.”
But Glendon does express some ambivalence about the human-rights industry, staffed predominantly by technocratic lawyers, “NGOs that seek to use UN settings as off-shore manufacturing sites where their agenda items can be packaged as new rights, and shipped out under the label ‘international norms.’” Of course, the Catholic Church which Glendon represented in Beijing, is the world’s largest, best funded, and arguably oldest non-governmental organization, but she makes an important point about the democratic deficit of so much international law and its susceptibility to capture.
One case in point is the way that the human-rights discourse has so easily lent itself to militarization. Human Rights Watch, a leading NGO, has recently called for humanitarian war in Libya, the Ivory Coast, and Syria. Glendon raises a quizzical eyebrow. “I cannot help wondering whether advocates of military intervention in these cases were in possession of adequate information and whether they adequately weighed all the relevant factors. How can one assure that intervention to save civilian lives does not ending up inflicting undue costs in terms of innocent civilian lives? How does national interest figure into these decisions?”
Any American conservative who can quote Marx, Rousseau, and Maritain approvingly is a rare bird, but in Germany Glendon would blend in easily among the brains of the Christian Democrats, who tend to be socially conservative but well to the left of our own Democratic Party on such matters as social insurance, labor law, and financial regulation. Here at home, a thinker such as Glendon scrambles our left-right compass points in useful ways.
The tension between rights-skepticism and rights universalism is by no means unique to Glendon; it runs through the heart of our political and social life. Inadequate though “rights talk” may be to many of our problems, we do need rights now more than ever against encroaching state power, especially from overzealous law enforcement. First-generation “negative” rights—those freedoms from government interference listed in the Bill of Rights—are by no means clinched, as Ron Paul and the ACLU would readily agree. The recent erosion of habeas corpus and the return of torture remind us that not even the United States lives up to the 30 articles of Eleanor Roosevelt’s great achievement. But perhaps Glendon’s greatest gift is to lead us outside the rights discourse altogether, if only for a moment, to consider its limits and dream of alternatives.
Chase Madar is a lawyer in New York.