The Rights Revolution (4 page)

These lectures are not intended to offer a whole-hearted endorsement of either rights talk or the rights revolution. I also want to highlight the limitations of rights talk as a language of politics. It’s not just that rights talk has a way of throwing light on some injustices while consigning others to political darkness. It’s also that rights talk ends up monopolizing our language of the good. One way to see this is to think about the family. These lectures will devote more space than political philosophy usually does to the impact of rights on family and intimate life. Much of this impact has been positive. It’s obviously a good thing for children to have rights (for
there to be limits on the kind of corporal punishment that can be inflicted, for example).
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It’s very important that women have the same rights as men to matrimonial assets and equal rights in divorce. In some sense, all of these changes aim at recreating the family in the image of a community of rights-bearing equals. But it sounds cold and heartless to think of a family in those terms. Rights talk doesn’t begin to capture the web of love and trust that makes real families work.

Trying to capture these values in the language of rights only makes for confusion. It doesn’t make any sense to talk about kids enjoying a right to love. A right to fair and equal treatment, sure; protection from abuse, certainly. But love isn’t a juridical thing at all. It’s not an enforceable duty or even an obligation.

We should beware of the ways in which rights talk can swallow up the whole of our language of what is good in private and public life. And we should realize that protecting the rights of individuals within a family isn’t enough to keep our family life healthy. Never before have individuals had so many rights within family life. Never have divorce rates been higher.

Some critics go a step further and actually attribute the long-standing crisis in our family life to the rights revolution. If there wasn’t so much loose talk about rights, so the argument goes, and there was more talk about responsibilities, we wouldn’t have families falling apart at such high rates. Sometimes, the target of this indignation is feminism, and sometimes it widens out to attack the very idea of rights itself. This indignation is trying to
express the real anguish many people feel about family life today, but it’s got the problem upside down. No one seriously supposes that we’re going to make family life better by taking away women’s rights and the rights of children. The challenge is to make an enduring institution out of a community of equals. Giving everyone rights clearly isn’t enough, but it can help. If men know they can’t get their way by smacking women and children around, then they have to start talking. In other words, rights can help us make the turn towards deliberation, towards negotiating rather than fighting. Rights can also address inequalities in the division of labour. Women leave marriages because the institution becomes unequal, unfair, and loveless all at once. Providing more rights for women and more state-sponsored child care and other aids, may — I say may — make the division less unfair. As for children, rights laws aren’t there to turn families into communes or Polish parliaments where everyone has a veto. They’re there to stop beatings, terror, intimidation, and violence.

This leads to a more general point. Rights are not a language of the good at all. They’re just a language of the right.
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Codes of rights cannot be expected to define what the good life is, what love and faithfulness and honour are. Codes of rights are about defining the minimum conditions for any life at all. So in the case of the family they are about defining the negatives: abuse and violence. Rights can’t define the positives: love, forbearance, humour, charity, endurance. We need other words to do that, and we need to make sure that rights talk doesn’t
end up crowding out all the other ways we express our deepest and most enduring needs.

A still more general point ensues. Rights regimes exist not to define how lives should be led, but to define the condition for any kind of life at all, the basic freedoms necessary to the enjoyment of any kind of agency. Agency is the key idea in rights. The word “agency” just means the capacity of individuals to set themselves goals and accomplish them as they see fit. The basic intuition of rights talk is that if individuals have agency, if they have the capacity to act in the world with some degree of freedom, they can protect themselves and those they love from abuse, and they can define for themselves the type of life they want to live.

To say that rights are about protecting agency is to say that rights are about protecting individuals.
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Now individualism has a bad name. But since life is often a matter of choosing between evils rather than goods, I prefer the evils of capitalist individualism to the evils of collectivism. Historically speaking, coercive communities have done more harm. We’ve run three serious experiments in the twentieth century to create communities that would replace narrow capitalist selfishness with communitarian fervour — experiments by Hitler, Stalin, and Mao — and the results are definitive.

My point is not that communities always end up in tyranny. In democratic societies, neighbourhoods and community associations often succeed in reconciling collective belonging with individual autonomy. But that is the test of whether they are successful. Communities are
valuable to the degree that they articulate individual goals and aspirations, to the degree that they allow individuals to accomplish goals they could not accomplish alone. Group rights — to language, culture, religious expression, and land — are valuable to the degree that they enhance the freedom of individuals. This suggests that when group rights and individual rights conflict, individual rights should prevail. The basic intuition of rights talk is that each of us is an end in ourselves, not a means to an end. This is because each of us wishes to frame our own purposes and achieve them in so far as we can. These purposes are valuable to us because they are expressive as well as instrumental. When we achieve them, we express our identities as well as serve our interests. That’s why agency is so valuable to us. I don’t think this individualism is Western or time-bound. It’s just a fact about us as a species: we frame purposes individually, in ways that other creatures do not.

So when you engage in rights talk, you are committed to a certain kind of individualism. This has its limits. I’ve mentioned the difficulty rights talk has in focusing the social and economic inequality that accompanies the competitive individualism of market society. Doing something serious about inequality means infringing on property rights. We hesitate to take this step not just because large capitalists have political power, but also because most of us are property holders ourselves, and we use our power in the political marketplace to resist the taxation necessary to make a redistributive dent in inequality. The problem, in short, is neither individualism
nor individual rights. Nor is it capitalism. The chief obstacle to making a dent in inequality is democracy.

If rights can’t be blamed for inequality, they can’t be blamed for disuniting the country either. Modern societies are conflictual: class against class, interest against interest, men against women, workers against employers. In this, Marx was deeply right. Rights are there to help adjudicate these conflicts, and these adjudications are never final. The longing for finality is a reactionary delusion, as is the longing for national unity, consensus, and a quiet life. Rights bring conflicts out into the open. But there are ways in which they also help us to resolve them. First, rights talk can show opposing groups that there is right on the other side. In this way, people’s understanding of what is at stake in a conflict slowly changes. Instead of a battle between right and wrong, the conflict begins to be seen as a battle between competing rights. At first, this may only reinforce self-righteousness. But after a while, when one side realizes that the other has a rights claim too, compromise can become possible. Rights talk clarifies disagreements and creates the common language in which agreement can eventually be found.

Rights consciousness also creates the grounds for understanding what kind of community we are, and in so doing helps us to keep the show on the road (i.e., binds us together as a people and as a country). For the key ideas of rights talk are that we are all deliberative equals, that each of us has a right to be heard about the public business of our country, that no one’s claims can be silenced and denied simply by the fact of who they are. This ideal
of deliberative equality — the commitment to remain in the same room talking until we resolve our disputes, and to do so without violence — is as much unity, as much community, as modern life can afford.
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The key point here is that rights talk, by creating this idea of deliberative equality, has widened the democratic conversation of societies like ours. I grew up in a Canada where the conversation of the country was firmly in the hands of a political and economic elite. Since the 1960s, the rights revolution has brought to the table whole new groups that were never heard before, and the debate about what kind of society this should be has become noisier, less controllable, and more democratic than it was before. For this, we have to thank the rights revolution.

I
N THE LAST LECTURE
, I described how the rights revolution has changed our country in the past thirty years — that is, how new groups have fought to establish their rights, and why our political culture (with its emphasis on group rights to both language and land) has made us a more distinctive people than we realize.

But we’re getting ahead of ourselves. We’ve plunged into the middle of the subject, and in so doing we’ve missed some important issues. Why do we have rights in the first place? What exactly does it mean to have a right?

If we ask these questions in our own country, the answers seem obvious. Citizens have rights because our ancestors fought for them. Rights are not privileges given by those who rule us — we’ve either inherited them from past struggles or won them with our own two hands. When people found governments, they do so not in a state of nature, as Jean-Jacques Rousseau supposed, but in historical time, and they come to the business of
making new rules of government with pre-existing rights. This was the case with the American colonists who declared their independence in 1776. Their Declaration of Independence was not an attempt to create rights out of nothing, but an affirmation that their existing rights as British colonists had been abused and a proclamation that thenceforward they would safeguard those rights in a constitution of their own. The British North Americans who created Canada in 1867 had rights prior to our act of confederation simply by virtue of being British citizens in crown colonies. So too did aboriginal peoples. They were self-governing nations, and their rights of self-government were confirmed by the British Proclamation of 1763. As we know, these rights were not originally recognized, and it’s taken Canada and the United States more than 120 years to correct that injustice.

Constitutions do not create our rights; they recognize and codify the ones we already have, and provide means for their protection. We already possess our rights in two senses: either because our ancestors secured them or because they are inherent in the very idea of being human. Such inherent rights would include the right not to be tortured, abused, beaten, or starved. These inherent rights we now call human rights, and they have force whether or not they are explicitly recognized in the laws of nation-states. Thus human rights may be violated even when no state law is being infringed.

This idea that rights are prior to government, either because they are historically acquired or because they are inherent in being human, is meant to set limits on
what government authorities can do to us. Legislatures and governments do not give us our rights; they are there to respect the rights we possess already. This takes us to a third sense of the word “prior”: governments and legislatures exist to protect, defend, and where we deem necessary, extend our rights. Rights define not only the limits of government power, but also its very purpose.

If we have a grievance that involves a violation of our rights, then the proper authorities must investigate and act. In this sense, rights are about giving grievances legitimacy. Once they have legitimacy, then redress is supposed to ensue. Not all grievances get legitimacy, of course. For example, nobody’s rights are being infringed when the heads of corporations earn a hundred times more than their employees. Gross income inequalities in our society may be wrong, but they are not illegal. Thus rights give salience to some wrongs while remaining silent about others. Some people think this makes rights useless. Others believe it turns rights regimes into an apology for capitalism. I don’t agree. It just means that some grievances can’t be fixed by the courts; they have to be fixed by politics, and in our system, a grievance that doesn’t convince a majority of our fellow citizens, however just it may be, doesn’t get fixed. As I said in my last lecture, democracy is one reason why inequalities of income have proven so hard to contain. Most Canadians are unwilling to lend their support to serious measures of redistribution. Indeed, such measures are seen as infringements on the rights of individuals.
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For this reason, rights talk tends to focus attention not
on the way the private economy runs, but on the way power is exercised over us by state authorities. Rights have both a positive and a negative relationship to state power. Positively, rights define our entitlements to state programs, such as unemployment insurance, welfare, health care, and pensions. Negatively, rights are the instrument we have to rein in what Shakespeare called the insolence of office. Our rights are supposed to prevent governments from reading our mail, taking away our property without compensation, or making decisions without our consent. Not everybody is happy with the way rights restrain governments.
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Social democrats think that property rights have had a negative impact, since they prevent government from redistributing income and resources; conservatives feel precisely the opposite — that rights should be there to protect us from government’s good intentions. It’s no use complaining that rights talk fails to end these political arguments about what is just. Rights are there to help us determine what is right, not necessarily what is just. Establishing what is just involves balancing rights claims, which is to imply that rights conflict: my right to property versus yours, your right to privacy versus the public’s right to know, and so on.