Rights and Wrongs About Rights

Rights Talk: The Impoverishment of Political Discourse
by Mary Ann Glendon
Free Press, 288 pages, $22.95

One of the dubious achievements of American legal philosophers and academicians concerned with “rights” is to have emptied jurisprudence of the element of prudence. Constitutional jurisprudence, both theoretical and practical, has become the instrument for fulfilling the postmodern vision of the truly free and morally autonomous individual. Of late, however, there has been a reassessment among liberal democratic intellectuals about the political and social consequences of the imperial self and its attendant jurisprudence and politics. Dissatisfied with the excessive, or “atomistic,” individualism of rights-based liberalism, they have gathered together under the banner of “communitarianism,” and have defined themselves, as a recent statement has it, as “a movement which recognizes that Americans have individual rights which entail responsibilities to the community. The community’s moral voice, through democratic means, can help counter radical individualism.”

There would thus appear to be a basis for liberal democrats to make common cause with social conservatives. One could imagine, for example, that the so-called “paleoconservatives” might discover some important political interests in common with the newly defined social democracy of the communitarians, and make a new alliance with them, if only they could be induced to part from their implicit “statism.” The libertarian right might then break from the paleoconservatives, and, in the shock of recognition, make common cause with the descendants of the existential left. And the neoconservatives? Well, since marginal groups always exploit the differences, there is hope.

Mary Ann Glendon, a professor of law at Harvard, a scholar of comparative law and an astute observer of the interaction of law and changing social mores, has lent her name and her growing reputation to the communitarian movement; while maintaining a critical distance from the assault on liberal individualism in some communitarian thought, she is a co-editor and contributor to their new journal, The Responsive Community: Rights and Responsibilities. She is also a person of moderation and much good sense. Courage, too, because the task she has set herself in her new book is nothing less than to create an argument that might bring to a halt, and even reverse, the social and political entropy identified with radical individualism, and to which modern constitutional jurisprudence has substantially contributed. I do not believe her argument succeeds, but its failure should be measured by the extraordinary difficulty of the task and the nobility of its purpose.

There are three themes woven together by Professor Glendon: a thesis that there is a peculiarly American “dialect” of “rights talk”; an examination of the jurisprudential use of this dialect and its harmful social and political consequences; and a comparative study of the jurisprudence and social policy of other liberal democracies. Permit me a medical analogy: the harmful consequences of our “rights talk” is the pathology; the origin and evolution of the “dialect” is the etiology of the disease; and the comparative legal study is the therapy. Whether the therapy leads to a cure, or is symptomatic relief at best, very much depends on understanding the cause—the etiology—of the disease. But it is best to begin with the diagnosis.

The American devotion to individual rights has led, in Professor Glendon’s view, to the phenomenon of “the lone rights bearer.” The right to privacy evolved from a right of marital relations into an absolute individual right as it was understood in Roe v. Wade . Norma McCorvey, the “Roe” of the case,

won the right that had been understood from its earliest appearance in the American legal system as “the right to be let alone.” And let alone she was. No one . . . had been willing to help her either to have the abortion she desired, or to keep and raise the child who was eventually born.

The fetus, however, if an individual, had no rights, because, in the words of Justice Blackmun, “the word ‘person,’ as used in the Fourteenth Amendment, does not include the unborn.”

In U.S. law, abortion is thus the “pitting of 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.”

By contrast, the (then) West German Court’s approach refused to decide between the two extremes. Following the West German Basic Law of 1949, which “made respect for and protection of ‘human dignity’ the foremost duty of the state, . . . the protection of human life . . . had to be given priority over personality rights.” Moreover, “personality rights”—“that inner sphere of personality which is in principle subject only to the free determination of the individual,” in the language of the German Court—had to be limited by “‘the rights of others,’ the ‘constitutional order,’ and ‘the moral code.’”

As regards abortion, the German Court’s view of the principle of human dignity, in Professor Glendon’s words, “does not mean that important interests of women can be ignored.” The protection of the developing life of the fetus was not to be protected by criminal sanctions, but by “educational efforts and social assistance to pregnant women.” The Court permitted the legislature, “within broad limits,” to create a “system to regulate the termination of pregnancy.” Women could not unreasonably be required to carry a pregnancy to term. More importantly, there is a social — system in place to support women, including single mothers, during and after pregnancy. Indeed, the systems in place in Western Europe “are meant to reduce the occasions where abortion will be considered necessary.”

In Professor Glendon’s view, the jurisprudence of the German Court, together with the enlightened social welfare system, are more rational and socially responsible ways of dealing with the problems of individual rights, because the individual is not simply a “lone rights bearer.”

Another pathology caused by the American emphasis on absolute individual rights is “our habitual silence concerning responsibilities.” Although the law is replete with responsibilities, nevertheless the Anglo-American tradition of tort law is, at bottom, hostile to the notion of basic moral responsibility to other individuals or to the community.

Buried deep in our rights dialect is an unexpressed premise that we roam at large in a land of strangers, where we presumptively have no obligations toward others except to avoid the active infliction of harm. This legalistic assumption is one that fits poorly with the American tradition of generosity toward the stranger, as well as with the trend in our history to expand the concept of the community for which we accept common responsibility.

Beyond individual responsibility to help, there is a public expectation that government has a “duty” to help. But this popular perception of the Constitution also is in tension with the legal understanding. In cases, for example, of public officials failing to come to the assistance of individuals in need, the courts have held that the Constitution, in Judge Richard Posner’s terms, “is a charter of negative rather than positive liberties.” Justice Rehnquist has written that “the Due Process clauses generally confer no affirmative right to governmental aid.”

It would have been better, according to Professor Glendon, had the courts emphasized those federal and state statutes by which the polity is committed “to a vast array of affirmative governmental obligations.” They are “constitution-like in character,” and commit the nation to a program of “positive rights.” Had the courts followed this approach, it would have helped to “bring together the two halves of the divided American political soul,” that is, the commitment, on the one hand, to limited government, and, on the other, the protection of “the weak and helpless.”

There is no substantive difference, Glendon believes, between the European social democracies and the American liberal democracy when one considers the social welfare statutes enacted here beginning in the 1930s. The difference lies in our public rhetoric with its emphasis on individual rights, whereas the European practice is “to keep responsibilities—of citizens and the state alike—prominently in view, along with rights.”

In democratic regimes, highly visible acknowledgements of governmental obligations to come to the aid of citizens in need . . . can help to promote responsiveness and responsibility in the political process.

Another consequence of the American dialect’s promotion of the individual as “radically autonomous” is “our underdeveloped notion of human sociality.” Here I believe Professor Glendon’s work to be especially welcome for its forceful reminder that the price we have paid for the exclusive focus on individual rights is a blindness to the most important questions.

Neglect of the social dimension of personhood has made it extremely difficult for us to develop an adequate conceptual apparatus for taking into account the sorts of groups within which human character, competence, and capacity for citizenship are formed. In a society where the seedbeds of civic virtue—families, neighborhoods, religious associations, and other communities—can no longer be taken for granted, this is no trifling matter.

But our political and legal language only speaks in terms of economic interests and individual rights. For example, we readily break up communities in the name of economic incentives, as in Poletown, outside of Detroit. The loss that community suffered—of neighborhood life, “shared memories and hopes; roots; a sense of place”—had no resonance in either the halls of the legislature or a court of law.

By contrast, in Western Europe there is an acknowledgement of “the long-term interest in maintaining the conditions that promote family life, community life, and a productive work force.”

But the neglected heart of developing sociality is the nurturing of children, a topic that Professor Glendon addressed in depth in her previous book, Abortion and Divorce in Western Law: American Failures, European Challenges. Changing economics and social mores have made obsolescent the traditional conservative view, which dominated the law until recently, of the family as the “basic social unit,” with “husband-breadwinner and wife-homemaker.” But how preferable is the view on the left, that the traditional family is “patriarchal” and oppressive of women, and where the individual is the basic social unit?

What is lost sight of in this “war over the family” is the fact that society’s basic interest is in the children, not in the definition of the family, and here our “individual rights-laden language” makes us blind to this public interest. Again: “European laws and policies, by contrast, routinely distinguish . . . between households that are engaged in child-rearing and other types of living arrangements.” In the U.S. we seem to be indifferent to the lessons of history that the development of character”that is nurture and education”is vital to maintaining democratic institutions, and we ignore the vital connection between character and citizenship.

Where do citizens acquire the capacity to care about the common good? Where do people learn to view others with respect and concern? . . . Where does a boy or girl develop the healthy independence of mind and self-confidence to participate effectively in government and exercise responsible leadership?

We require, in Glendon’s view, “a shift from family policy to family ecology.” Child raising is not “just one more ‘life-style’ . . . to which the state must be ‘neutral.’”

Because individuals are partly constituted in and through relationships with others, a liberal politics dedicated to full and free human development cannot afford to ignore the settings that are most conducive to the fulfillment of that ideal.

Glendon here does not simply refer us to European practices, but observes that recently we have begun to recognize that nongovernmental community-based groups such as religious institutions play an essential mediating role between government and society. Of course, because of the reigning “wall of separation” doctrine, it was predictable that this would be challenged in the courts, but the recent court ruling regarding the Adolescent Family Life Act was a refreshing departure from the “checkered pattern of church-state decisions over the past forty years.”

It is clear that Professor Glendon’s recipe for moderation is not a return to American first principles, if that means returning to an “eighteenth-century charter” of individual rights over and against government. The restoration of moderation is a return, but only from the present-day excesses of rights talk back to the golden age of liberal social policy beginning with FDR. It also requires a turn to a constitutional jurisprudence that is more respectful of—or at least is willing to consult—the Romano-Germanic, and is more critical of the Anglo-American legal traditions.

Quite apart from whether this approach to recovering moderation is desirable, what makes it intellectually feasible? For Professor Glendon, it seems to be a clear devaluing of the principles of the Constitution, such that it appears they are not adequate to the present-day task of governing ourselves, indeed may be responsible for the social ills we all deplore. Although Professor Glendon does not understand herself to be an enemy of rights-based liberalism, nevertheless her portrayal of that liberalism seriously undermines her purpose. It is necessary then to turn to the etiology of the disease, namely Professor Glendon’s attack on “rights absolutism.”

From the earliest times of the Republic, the American habit of using legal language has tended to absolutize rights, nowhere more perniciously than in the exaggerated rhetoric of property rights. This rhetoric, however, is clearly in conflict with the reality. From at least the Charles River Bridge case of 1837, property rights “were not, and could not be, absolute.” Nonetheless, the Supreme Court had an ardent love affair with “freedom of contract” jurisprudence in the latter part of the nineteenth and first decades of the twentieth centuries, until the shift, in the 1930s, to subordinate property rights to “public purposes.”

This tendency to exaggerate property rights is traced by Professor Glendon to what she calls “the property paradigm” of John Locke. Locke, according to Professor Glendon, in regard to the right to property and its basis in a “state of nature,” is but a “story-teller.” His assertion that a person has “proprietorship” in his own body is undemonstrated. Europeans find it odd because, in their legal tradition, “a human body is not subject to ownership by anyone.” The state of nature is “imaginary,” and the “most fateful move” in Locke’s account is to have argued that “the essential reason human beings submit to government is to safeguard their property.” Locke’s purpose, however, in the Second Treatise “was to delegitimate the monarchy . . . and to buttress the political power of both the landed gentry and the rising merchant classes.” Therefore it “is in many ways more like a ‘lawyer’s brief’ than a learned tract.” “Property” was a way of opposing the “divine rights” of monarchy because it was appealing in a seventeenth-century agrarian England. According to Professor Glendon, Locke is not a guide to the permanent and enduring condition of mankind, but only to the history of his age.

Glendon clearly prefers what she calls “the paradigm of inherent limits,” or the European version of liberalism built on a foundation of “Rousseauian rhetoric, classical notions of virtue, and feudal vestiges” that has “subdued the thrust of property rights toward absoluteness.” In Glendon’s view, the European tradition of rights, particularly in the constitutions written after World War II, is moderate compared to the Anglo-American tradition.

It is a striking feature of these postwar constitutions . . . that few of the rights they establish are presented in such a way as to lend themselves to the interpretation that they are absolute.

Property, in the European context, reaches back to the biblical tradition and “the idea of stewardship of property as inherently entailing obligations, and of subsistence needs as taking precedence over property rights.”

Glendon’s preference for Rousseau over Locke is a most important clue to her thought about—and critical view of—the Anglo-American tradition. Rousseau’s thought “prevented exaggerated notions of property from dominating the development of rights ideas there.”

Arguably the most important contribution of Rousseau to modern European political discourse was to keep alive classical and biblical treatments of great perennial issues. True, these remained only subthemes and countercurrents, but they were strong enough to keep European liberalism in dialogue with Athens and Jerusalem.

If it is true that Rousseau kept alive the classical tradition of virtue and the Bible, however, it was virtue without reason and the Bible without God. Moreover, Glendon passes over in silence Rousseau’s contribution to that peculiarly European phenomenon, totalitarian democracy. Glendon is not uncritical of Rousseau, particularly the tradition of the isolated and free individual that originated with him. Glendon acknowledges the line of development from Rousseau to Kant as regards the idea of moral autonomy, to which she adds, illogically and unhistorically, the homo economicus of Adam Smith. But she deprives herself of one of the causes of the present-day pathology by not tracing the line of descent through to its end in the acid-bath of Nietzsche, which etched away the circuits of ethical reasoning in that little god within, the self, leaving behind only a nubbin of pure, radioactive will.

Finally, Rousseau’s teaching of human nature as unfixed and infinitely self-creative legitimized irrational historicism. Glendon, regrettably, is the unreflective heir to this tradition in her historicizing interpretation of Locke.

But it is her assault on the right to property that is perhaps the most misguided of Glendon’s stratagems, since it undermines her own quest to restore the idea of responsibility. Although Glendon considers Locke’s premise that everyone has a property in his own person to be undemonstrated, in truth it functions as an axiom. The European legal tradition, as Glendon points out, holds that no one owns his own person. But which tradition is preferable with a view to individual liberty? Locke understands a truth about “ownerless” property: it will be appropriated by someone. There is no reason why this should not be true about other human beings; if they are “ownerless” there is no barrier in principle to “owning” them. The right to liberty is crucially dependent on having a property in one’s own person; one cannot be owned by another.

Again, Glendon believes that the fact that property is regulated shows that the right to it is not “absolute.” But all natural rights become limited when they are transformed into civil rights: otherwise we could not secure them. Glendon does not see this in part because she is persuaded that the “state of nature” in Locke is “imaginary.” Robert Goldwin, in his persuasive reading of Locke, however, has shown that the “state of nature” is neither myth, history, or fiction: “We see that the state of nature exists in two ways consistent with the existence of civil society: in the relations of independent political communities and, within a political community, in the relations of criminals and their victims.”

The State of Nature is not the mythical original condition of mankind, but a permanent and enduring condition; it exists within civil society wherever men do not have a “common judge with authority.” Bernhard Goetz, and many others, have understood this instinctively when riding the New York City subways.

The fact is, to make the argument showing the necessity of responsibility, Glendon should be more friendly to absolute rights, properly understood. Glendon does not see that “absolute” is equivocal. There are two senses of the term: as “principle” or unconditioned condition from which certain consequences must flow; and as arbitrary or willful. Property is a right in the former sense, while the Millsean right to do as I please as long as I do not harm others is absolute in the latter sense. Similarly with the civil right of free speech. When it was separated from the exercise of political discourse and became an “absolute” right, in the sense of arbitrary and willful free self-expression, precisely what was lost was the idea of responsibility. This suggests that the abandonment of the distinction between natural and civil rights has had the unfortunate consequence of making all rights appear to be equally “absolute.” Were all rights equally absolute, then indeed Glendon must be correct about the consequences for responsibility. But where no rights are absolute, then the ground of responsibility is also lost.

Finally, of course, there is that greatest and most absolute of all natural rights, the right to life. The German Court upheld the protection of the life of the fetus on the grounds of “human dignity.” I wonder whether “human dignity” is superior to the unadorned “right to life.” Of course, one should not speak against “human dignity,” but it is nonetheless useful to point out that the Bible has two accounts of the creation of man, in only one of which is he said to be in the “image of God.” Although there is a component of dignity that is unconditional, there is another that very much depends on law, character, and custom. That is to say that after we speak of human dignity in its unconditional sense, we must also speak of human depravity and thereby point out the sense in which dignity is also something to acquire and to forfeit. By comparison the unadorned natural right to life may be preferable as a political foundation for acquiring human dignity precisely because, in its precariousness, the necessity for “civil society” is revealed. The concern not shown for the fetus by the Supreme Court in Roe v. Wade is ample evidence for the precariousness of the right to life, and it reminds us that the “state of nature” is a permanent condition even within civil society, even within the sacred precincts of the law. If neither the justices nor the mother speak for the fetus, it is indeed in a “state of nature” lacking “a common judge with authority.”

Glendon also conflates responsibility with “duty.” A duty is an obligation to some higher, presumably unselfish, purpose. I may have a religious duty to give charity; what binds me to my duty is my faith. Faith, however, may waver. Responsibility, on the other hand, is a democratic virtue tied to interest. This is not a terribly recondite thought: I own a house, maintain it, pay the taxes, and vote, and see that my neighbors take care of their property. This is to be answerable to others, responsible for my actions, but is not to answer the call of duty. What is true of property, according to Locke, is also true of the right to life: I am obliged to seek to preserve the life of all as a means to preserving my own.

Professor Glendon believes that “the state” must actively affirm its duties to the weak and helpless in order to demonstrate to its citizens their civic duties. Quite the contrary seems to be true. The social welfare state is responsible for the creation of rights as entitlements. Such entitlements, in the U.S., have developed their own interest groups which see government not as “polity” but as “the state,” and regard the process of politics as dividing the public resources according to their respective entitlements. Here we see, with regard to managing the economic health of the nation, that the “duties” of government have corrupted the responsibilities of those who govern.

What is important about citizenship in American constitutional democracy is not its “duties,” but its habits . They are not habits of the heart, but of the head. The primary habit is deferring to majority rule. Its basis is the confidence that majorities, in principle, because they are “constituted,” are temporary, and that on some issue or other, but not on all, everyone may hope to be a member of a majority. This is the modern version of Aristotle’s formula that citizenship above all is knowing how to rule and be ruled in turn.

And what about Professor Glendon’s remedy? Can her prescription for appellate jurisprudence work? “Our rights jurisprudence could only benefit if American judges and lawyers in difficult and novel cases followed the practice . . . of examining important decisions of leading courts elsewhere.”

While I agree with Professor Glendon about the pernicious influence of rights talk, we disagree about its causes and its cure. I much prefer Justice Scalia’s dissent, quoted by Professor Glendon, that “We must never forget that it is a Constitution of the United States of America that we are expounding,” but I confess that in the end I do not have much confidence in constitutional jurisprudence. One consequence, it seems to me, of requiring of the Court a wisdom about “rights” beyond that of the Framers is that it undermines the habits of citizenship that rely on the confidence of the people in constitutional majorities. I modestly suggest, therefore, a rule of prudence to be applied to constitutional jurisprudence: A Justice should always consider, when deciding “a novel and difficult case,” whether the outcome will increase or diminish the ability of the people to govern themselves by the mechanisms laid down in the Constitution. This very likely would mean subordinating the intractable questions of individual right, insofar as they reflect changing social mores, to the political process. True, the tyranny of the majority is the intrinsic danger in a democracy, but the tyranny of pernicious ideas, tricked out in the language of rights, it seems to me, is far worse than having to abide by the rule of constitutional majorities.

Robert A. Licht is Resident Scholar and Director of Constitution Studies at the American Enterprise Institute.

Photo by thecrazyfilmgirl via Creative Commons. Image cropped.