Rights Talk: The Impoverishment of Political Discourse, by Mary Ann Glendon, New York: The Free Press, 218 pages, $22.95
Mary Ann Glendon is glum about the condition of rights discourse in America. Perhaps that's due to being on the same junk mailing lists that I am. Last week's delivery brought me an oversized red, white, and blue envelope from something called the "National Association to Protect Individual Rights." Beneath a tasteful etching of the Statue of Liberty it lists "inalienable rights" of: Taxpayers, Retirement, Life-style, Victims, Employees, Personal Privacy, Sportsmen, Environmental, Smokers, and (how does this one fit in?) Citizens. There may have been more on the inside; I didn't have the heart to find out.
This throw-away mailing is symptomatic of what Glendon aptly characterizes as "our increasing tendency to speak of what is most important to us in terms of rights, and to frame nearly every social controversy as a clash of rights." By doing so we stake out nonnegotiable positions and signal a refusal to acknowledge coherent reasons on the other side. Grounds for potential productive compromise are spurned. Instead of opening our thinking to considerations of individual responsibility, civic virtues, and the creation of devices for living better together through a tolerant acceptance of differences, we imprison it in a legalistic straitjacket. The result is an increasingly more strident, more fatuous political discourse.
Glendon's indictment will, of course, be warmly received by those who would just as soon dispense with all talk of rights. For technocratic social planners concerned to tinker endlessly via cost-benefit calculations or utopians zealous to institute their personal vision of the Good Society, rights are, at best, annoyances that stand athwart their designs. But those who place serious stock in natural rights should also welcome Glendon's discussion.
The proliferation of heretofore unsuspected rights is a kind of inflation that cheapens our moral currency. Within the tradition of classical liberalism, rights have been the heavy guns in the moral arsenal. They impose constraints with which individuals must comply. Precisely for that reason, they are to be employed sparingly. People cannot live freely if they are hemmed in on all sides by binding requirements. Therefore, rights should be conceived as establishing a moral baseline to which all must adhere. Beyond such minimal compliance, persons remain at liberty to order their doings in accordance with their own ideals of a fulfilling and responsible life. Insofar as rights establish a bulwark within which persons are protected from interference, they are liberating. Extended beyond that domain, they become oppressive. Rights Talk, at its best, lodges itself in the heart of this liberal tradition.
Unfortunately, this best is only intermittently attained. While Glendon remains within her area of special expertise, comparative law, she is generally informative and insightful. But her attempts to develop a grand thesis lead her astray. In particular, Glendon's understanding of the pedigree and logic of liberal rights is deficient.
Rights as theorized by philosophers such as Locke and Kant are, she tells us, an "expression of unbounded desires and wants." That's precisely backwards. What is distinctive of this tradition is that the great stringency of rights is counterpointed by their sharply demarcated scope.
You can desire what you like, but that creates no rights against others to special treatment. Beyond noninterference—just being left alone—very little else can legitimately be claimed as a matter of right. Others may, of course, do more than merely display benign neglect, and no doubt they should do more. But whether they will is up to them. We do better, therefore, to say that the vocabulary of rights is one of explicitly bounded desires.
Glendon continually repeats the tired canard that classically liberal rights deny the essentially social nature of human beings, that they are crafted for self-sufficient "monads" complete unto themselves. To be sure, rights permit individuals to wallow in purely personal and selfish concerns. That is because they empower individuals to direct themselves by their own lights rather than spin to the tune of some self-proclaimed ethical guru. But while those who choose to live a thoroughly self-absorbed life may do so, those whose identity is largely constituted by ties to family, friends, religious denomnation, or some other community of fellowship are equally at liberty to forge lives of meaning and worth for themselves within avowedly social contexts.
Indeed, the protections afforded by rights are a necessary if not sufficient condition for the existence of flourishing voluntary associations. The preceding half century of the Eastern European experience amply illustrates what happens to communities when "bourgeois rights" are scrapped.
Fixation on the language of rights, Glendon avers, drowns out attention to the claims of duty. This assertion is doubly defective. First, it ignores the patent fact that the corollary of a right is, logically, a duty, the duty incumbent on others to respect that right. If this is your front yard, if you have a right to its untrammeled enjoyment, then there is a concomitant duty on me not to dump my garbage on it, not to hold my picnics there without your permission, and so on.
But second, if what Glendon decries is the overgrowth of legalisms within our public moral and political vocabulary, then a turn away from rights to duties is hardly an improvement. Anyone who has ever been subject to legal judgment can confirm that the language of duty is every bit as juristic as that of rights. Glendon would be truer to the sound core of her argument were she to realize that the center of our moral lives is the realm in which our actions are subject to our own discretion rather than the unyielding call of duty. When we are obliged neither to do nor to refrain we display through our unconstrained choices what sort of persons we are. Indeed, it is through these choices that we make and remake ourselves as those particular persons. Not the least of the charms of robust rights to noninterference is that they afford us opportunity to develop, for better or worse, the character of responsible beings.
This criticism may seem unduly abstract, the sort of thing that could warm the blood only of professional philosophers. So let me repeat a story that Glendon tells in Rights Talk. It is a moving tale and one that, she thinks, has a moral. I too am moved by it, and I also spy a moral. But my moral and Glendon's are far removed.
During the 1970s, General Motors decided that it could better beat back the challenge of invading hordes of Hondas and Toyotas by constructing a new Cadillac assembly plant in the Detroit environs. The site on which it set its corporate heart was "Poletown," a neighborhood in which generations of Polish immigrants had settled, raised families, and constructed churches, schools, social clubs, and businesses. This history and web of institutions made Poletown irreplaceable to its residents.
So when Detroit supinely showed itself the faithful lapdog of G.M. and undertook to turn the land over to the corporation, the Poletown residents lodged an appeal to the Michigan Supreme Court to overturn the city's exercise of the power of eminent domain. They desperately invoked an analogy to environmental protectionism, arguing that the destruction of their community would do severe damage to the fabric of the social environment. The court was unmoved by this novel extension of environmentalism. Detroit's authority to condemn the properties was upheld, more than 4,000 residents were forced to move, and the plant was built. Ironically, the vast economic benefits that were cited as the public rationale for eminent domain largely failed to materialize.
Glendon, to her credit, recognizes that the pillage of Poletown was an outrage. Our legal procedures showed themselves sadly unable to safeguard the values of "roots, relationships, solidarity, sense of place, and shared memory" that were at stake. What we need, she concludes, is a legal and political discourse sensitive to such considerations.
The point, though, is that we already have it—or at least we once did. It is none other than the language of rights, specifically property rights. General Motors could not have swept away a neighborhood against the wishes of its inhabitants if the courts had been willing to uphold the owners' rights to security in their possessions. But, as Glendon notes, the day is long past when courts will interpose themselves against a taking of property for a vauntedly public purpose. The unfortunate demise of Poletown, then, is not attributable to a proliferation of "strident" and "simplistic" rights demands; it is directly traceable to the erosion of respect for traditional property rights.
What we need is not a reformed political discourse that moves further away from invocations of rights but rather one that soberly yet insistently reaffirms the primacy of those foundational rights that were and remain the crux of classical liberalism. Glendon, however, fails to pick up this obvious cue. Why? I am convinced it is because her ideological senses have been dulled by listening too much to a simplistic public discourse, though decidedly not the discourse of rights.
Rights Talk situates itself within the "communitarian" strand of social philosophy. Communitarians cudgel liberals with the accusation that the latter pay insufficient heed to the need of persons to forge lasting ties within a context of small-scale associations that afford them the values by means of which they can orient themselves and lead meaningful lives. Although enjoying considerable current philosophical vogue (perhaps in virtue of filling the vacuum on the left created by the gradual withering away of academic Marxism), this critique has never been developed with more than sloganistic appeal.
Communitarian theory rests on a bogus opposition between liberal pluralism and individuals' ability to forge strong bonds with others. But as the Poletown scenario suggests, liberal rights to noninterference complement rather than clash with claims of community. The value of being left alone does not apply only to what Glendon calls the "lone rights-bearer"; it is no less crucial to those whose sense of self is sustained through intimate relations with others. Simplistic rights talk is bad rights talk, but simplistic community mongering is no improvement.
Contributing Editor Loren E. Lomasky, a professor of philosophy at Bowling Green State University, is the author of Persons, Rights, and the Moral Community.