What's Wrong with Rights?

By Madar, Chase | The American Conservative, April 2012 | Go to article overview

What's Wrong with Rights?


Madar, Chase, The American Conservative


Mary Ann Glendon challenges Americas supreme political values.

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, bioediics, 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 die 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 frequendy unable to deal with nonindividualist struggles in our social dimension. Rights are legalistic, and die spurious law talk they carry with them has corrupted public debate outside die courtroom, from the town hall to the kitchen table. (Glendon, a bit of a self-loadiing 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 diought, 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 socalled 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 simdar 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 Uberai political thought, which she calmly points out is not the only game in town.

Instead she casts a longing gaze on the RomanoGerman traditions of the Continent, where Rousseau and Kant fashioned poUtical theories that acknowledge our species' fundamentaUy social character, not just our possessive individualism. …

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