“Human rights are fictions—but fictions with highly specific properties.”
In 1960 John Courtney Murray, S.J., warned of the possibility that America was slipping into a new barbarism. In his best known work, We Hold These Truths, Father Murray said that barbarism “threatens when men cease to talk together according to reasonable laws.”
Argument ceases to be civil when it is dominated by passion and prejudice; when its vocabulary becomes solipsist, premised on the theory that my insight is mine alone and cannot be shared; . . . When things like this happen, men cannot be locked together in argument. Conversation becomes merely quarrelsome or querulous. Civility dies with the death of dialogue.
In short, said Murray, “Barbarism threatens when men cease to live together according to reason, embodied in law and custom.”
Thirty years later, Mary Ann Glendon fears that Father Murray’s concern may have become reality. She claims in this book that contemporary “rights talk” is both the cause and result of a political society that has become “merely quarrelsome and querulous.” Glendon, a professor of law at Harvard University, argues persuasively that the hyper-individualistic idiom of rights language in America (unique, she thinks, among liberal democracies) has led us to the point where little authentic discourse takes place in American political culture.
Or should one say “American legal culture,” since a large part of the problem is our obsession with absolute demands for our “rights,” which has led to a highly legalistic orientation. She cites the ” ‘legalization’ of popular culture” as both “cause and consequence of our tendency to look to law as an expression and carrier of the few values that are widely shared in our society: liberty, equality, and the ideal of justice under law.” By reducing political discourse to mere legalisms, we have forgotten how to have truly political conversations, rooted in traditional forms of authority such as family, church, and community.
Professor Glendon demonstrates that-several significant problems follow from the legalistic temptation. First, by reducing political discourse to a discussion of mere legal protection of our rights, “legality . . . has become the touchstone for legitimacy” in social debates. Despite the vacuous rhetoric about not legislating morality (“A moment’s reflection suffices to remind us of how much of American criminal law . . . [is] a repository of moral norms”), Americans have come to feel that legal permission is moral sanction. When traditional forms of legitimate moral guidance and proscription are done away with, only the legislative code remains to define what is legitimate, and thus “moral.” “As social norms become weaker,” Glendon asserts, “a kind of moral vacuum arises” and “law has a tendency to move into this vacuum.” Our statutes and (more importantly) our great judicial opinions have caused Americans to “regard certain types of law as carrying a moral charge.” Americans regard legality as the minimum moral requirement, with any stronger sanction being a matter of individual choice.
This phenomenon is not limited to positive legislation. Glendon argues that emphases and silences in legislation and case law also suggest moral legitimacy. “The silence of law can begin to speak,” says Glendon. The silence she is most worried about is that of any language of “responsibility,” or positive obligation to act in American law. Ours is a system built upon the “right to be let alone,” and little else. Since Americans so persistently look to law as moral sanction, Glendon is convinced that an infusion of the language of duty into both law and judicial opinion would effectively improve the way we treat one another in the real world. Instead, our laws assume and encourage the “lone rights-bearer” unencumbered by any positive moral obligation, but with many positive legal claims and demands.
This brings us to the second problem of our simplistically legalistic culture: discussion of law in America is rarely about justice and almost always about claims, assertion, will, and power—in short, about rights. Where a theory of personal virtue is absent and some theoretical “right” is set in its place, only will and power can decide. Contemporary American law, then, is occupied not with principles of justice but with the distribution of power. Since American law, having no principle of justice beyond rights, cannot weigh the legitimacy of certain legal claims, it tries merely to balance one claim against another when the two conflict. Thus, says Glendon, “The new rhetoric about rights is less about human dignity and freedom than about insistent unending desires.” When notions of freedom and human dignity are stripped of a context defined by traditional forms of authority, and when justice is uprooted from a narrative environment of virtue, only will remains. And Americans have taught themselves very well how to assert their will (meaning rights) through laws. Abortion is the perfect example: “In the United States, the abortion issue is typically framed as pitting two interests against each other in an all-or-nothing contest: the right to life of the fetus against the pregnant woman’s right to privacy and self-determination.”
So we live not in a truly political culture based on rational conversation but in a disparate group of atomistic individuals loudly asserting rights, placing in the process a great strain on our system of government. “Our stark, simple rights dialect puts a damper on the processes of public justification, communication, and deliberation” that are essential for the life of a democratic regime. Like Father Murray, Glendon worries that we cannot come to authentic agreement: “It has become increasingly difficult even to define critical questions, let alone debate and resolve them.”
Glendon also demonstrates how the laws of other liberal democracies manage to avoid the atomism.of American law. Rights in many western European laws and constitutions are often rooted in the context of responsibility to the political community. Though they are individualist, promoting the good of individuals and protecting their liberty, they place (and thus define) the individual and his rights within a context that mitigates and qualifies those rights so that they do not work against the good of the larger political community.
This is in contrast with American law (especially case law), which bases much of its reasoning on the fictitious pre-political individual. Supreme Court cases in particular have aggressively held that no social considerations are allowed in protecting (or inventing) rights of individuals. This is most starkly established in the recent cases that have caused such turmoil in American public life: Griswold v. Connecticut, Eisenstadt v. Baird, Roe v. Wade, and Doe v. Bolton. Rights in these decisions, all involving “privacy,” abide absolutely with the individual. The “right to be left alone” is the epitome of contemporary American legal protection.
Mary Ann Glendon is well-known for her assertion that law is the expression of a political community. The kinds of laws we enact and the way we enforce them are not arbitrary; rather, they represent the narrative of our lives together. This being so, it seems paradoxical when Glendon asserts that she does not think we really are as individualistic and selfish as our extreme preoccupation with rights makes us seem. Glendon cites the many voluntary civic and cultural institutions to suggest that we are not atomistic strangers to one another, that we do indeed see ourselves as social animals by the many free associations we form and join. Yet she worries that much modern case law presents “new and unfortunate meanings in a society whose rights talk is filled with uprooted law talk.”
Perhaps Glendon is correct: we are formed by the law and, especially from Glendon’s perspective, by the particular language of the law. But this material formulation can only take place because we have already accepted the formal idea that legal leniency is roughly equated with moral leniency. Legality is legitimacy; and legitimacy always ends up being about protecting a right, or inventing a new one. Consequently, nude dancing cases are not about morality, virtue, or even “values,” but about someone’s right to dance in the nude.
But there is a second paradox in Rights Talk. Glendon is persistent and convincing in her account of how this phenomenon has become a perverse form of political debate, but she makes it clear that she does not intend to reject rights, per se, as a principle of justice. Her book “is not an assault on specific rights or on the idea of rights in general,” nor does she want to “abandon” but to renew “our strong rights tradition.” But Glendon’s book suggests that this may not be possible, and that the theory of “rights” itself must be seriously reconsidered.
Although Glendon correctly complains that political discourse is being reduced to legal claims, is not this situation inevitable to a rights-based (i.e., liberal) political philosophy? For instance, she worries that our “rights language” prohibits the facilitation of “public discussion of the right ordering of our lives together.” But the whole point of liberalism is that individual rights replace political discourse, since in the 18th century we gave up on the idea of discovering political truth. Rather than attempt to describe the most humane of all possible political systems, we invented human rights and allowed individuals to pursue these on their own. The problem is not that radical rights language in America prevents reasoned political debate; it is that individual rights themselves have replaced politics.
Glendon does not attempt to explain why some rights are legitimate and others are not. (Nor, it seems, is it possible to give such an explanation.) She argues that some debates, such as that regarding abortion, ought not to be argued in terms of rights alone. But this is simply because the legitimate conflict (legitimate, that is, in terms of a liberal rights theory) is so difficult to decide in terms of rights. Glendon argues further that an ethos of responsibility and obligation (as well as a society more welcoming of children) would make this particular battle easier to resolve. Of course she is correct; but if “rights” is still the category of justice at work, recourse to the “right to choose” will remain a trump. And when rights conflict, strength wins the day.
More fundamentally, Glendon seems to commit the common mistake of not seeing that liberalism is itself a political and moral tradition, one which rejects an ethic of responsibility in favor of one of claims and rights. Typically, Americans think liberalism is distinctive precisely because it does not describe the social narrative; or as Stanley Hauerwas puts it, “The story that liberalism teaches us is that we have no story, and as a result we fail to notice how deeply that story determines our lives.” The story of liberalism is that we have no responsibility beyond protecting our own individual lives.
Glendon’s book is evidence that the rights theory at work in America is the Hobbesian version that she explicitly questions. “The Right of Nature,” says Thomas Hobbes, “is the Liberty each man hath, to use his own power, as he will himselfe, for the preservation of his own Nature; that is to say, of his own Life; and consequently of doing any thing which in his own Judgement, and Reason, hee shall conceive to be the aptest means thereunto. . . . It followeth, that in such a condition, every man has Right to every thing; even to one anothers body.” Of course, since this renders us all at risk, we provisionally give up some aspects of this right and invent government to protect others.
But the doctrine remains, and Glendon offers substantial evidence that we are becoming an example of Hobbes’ most famous sentence: “To this warre of every man against every man, this also is consequent; that nothing can be Unjust. The notions of Right and Wrong, Justice and Injustice have there no place.” Hobbes is describing the “state of nature,” toward which America is regressing. Professor Glendon sees this in what may be as strong an indictment of liberal rights as one can find:
Neither the older political and civil rights, nor the newer economic and social rights, can be secure in the absence of social arrangements that induce those who are disadvantaged by the rights of others to accept the restrictions and interferences that such rights entail. When individual rights are permitted to undermine the communities that are the source of such practice, they thus destroy their own surest underpinning.
Glendon sees that “the evidence is mounting that we have been living for quite some time on inherited social capital, consuming our resources without replenishing them.” But we must understand that this is according to the very genius of liberalism: those institutions that allow a liberal society to have some modicum of civility are inversely proportionate to the assertion and exercise of “rights.”
These warnings and others in Rights Talk seem to indicate that Glendon herself may be implicitly giving up on the idea of rights, despite her efforts to preserve the theory that justifies them. She calls for a kind of “rights” that is intrinsically delimited or qualified by a particular context, and by a language of obverse duty and responsibility. If this is what she advocates, she is talking not about human but about civic or legal rights.
Glendon seems also to point back to a pre-liberal understanding of natural right, or natural justice. This theory holds not that individuals are born with rights, but that there is a naturally right, or naturally just, way to organize political society. She attempts not to defend these natural rights but to modify our understanding of ourselves and the law, and herein may be the real value of the book: it is an earnest, careful, and intelligent attempt to work within a theory of natural rights that demonstrates precisely why such a doctrine does not work. Glendon hints at something other than the current rights paradigm, at a much more promising way of arranging political society. Regrettably, such “rights talk” will not soon be purged from American political discourse.
[Rights Talk: The Impoverishment of Political Discourse, by Mary Ann Glendon (New York: Free Press) 218 pp., $22.95]