Being wrong about rights
Newman, Stephen L.
Constitutionally entrenched individual rights have long been the subject of conservative ire. This is hardly surprising. Conservative notions of "law and order" and "family values" clearly favor...
...it simply insists that we are more than products of our socialization...
...Liberals insist on treating persons as rational agents capable of reflecting critically on their own beliefs and values...
...Consequently, workers have a collective interest in opposing them...
...The critique insists that liberalism ignores the problem of socialization, the formal and informal learning of social norms and practices that contributes to the formation of the individual's identity...
...First of all, it is important to note that this is not the same argument historically deployed by the left against the right of property...
...If a shared conception milmn WINTER • 1992 • 95 of the good is the defining characteristic of a community, then there is no single community in the United States...
...Consequently, the liberal approach demands that persons be persuaded rather than coerced into changing their allegiance to some particular understanding of the good...
...Our constitutional jurisprudence shows that rights tend to expand over time as our political selfunderstanding evolves...
...Under capitalism, then, property rights are tied to class interest and are seen to facilitate rather than obstruct common action...
...A wise judiciary would return unwarranted rights claims to the political arena...
...The communitarian critique of rights differs in another important respect from the older critique of property...
...To believe this we must believe that we already live in a community broadly agreed on a conception of the good life and that rights are the serpent in the garden, tempting us to betray the communal Eden...
...These persons join in what the scholarly literature knows as the communitarian critique of liberalism...
...Politically, the right of property is invidious when it systematically allows one class of persons to exploit another by virtue of their differing relations to the means of production...
...To the degree that our common speech is riddled with racial and ethnic slurs, our culture becomes racist...
...Communitarians, on the other hand, show less concern for the autonomy of rational agents...
...In place of rights they offer as a protection against persecution "the shared sense of membership" bonding persons in the community and the "mutuality" born of democratic participation...
...What the critics think is wrong with rights now becomes clear: rights prevent the community from taking steps necessary to protect its essential conception of the good...
...Similarly, liberals would not prohibit hateful speech that does not incite to violence...
...They are evil not so much because they do some identifiable harm to particular persons but because of their effect on the social environment in which we all live...
...The liberal approach does not implicitly ignore the claim that we are "socially constituted...
...It follows from this that even a society committed to such a liberal value as tolerance cannot afford to ignore the spread of antithetical values...
...This is because the communitarian insistence on allowing the majority to safeguard its essential conception of the good inevitably excludes from membership those persons who refuse to conform, or who by virtue of their color or their sex cannot...
...This is the case even though property rights adhere to individuals...
...Communitarians fault liberals for assuming—mistakenly, in their view—that the social environment in which rights are exercised is unimportant...
...Still, I think most liberals would be uncomfortable with the logic of the communitarian argument, and rightly so...
...How many on the left today believe that Plessey v. Ferguson was rightly decided and that Brown v. Board of Education did harm to American democracy...
...The recent communitarian critique aims more broadly and appears in the service of democracy rather than justice...
...Communitarians differ among themselves over which level of government should be assigned political control in these questions, though many favor decentralization to municipal authority...
...Communitarians are certainly correct to warn against the proliferation of rights claims in democratic societies...
...Communitarianism draws on an insight often neglected by liberal theorists...
...that the character of our social environment matters...
...The liberal believes that the way to deal with pornography is to persuade others not to buy it or read it or watch it...
...Where rights are trumps, there is a powerful temptation to avoid the hard work of consensus building by transforming some desired political outcome into an inalienable right that requires only sanctification by a court to become effective...
...The irony of the communitarian critique is that its allegiance to majoritarian democracy ends up being more subversive of community than the "atomizing" doctrine of individual rights...
...John Locke himself saw no reason to tolerate Catholics, "Turks," or atheists, because he thought them incapable of observing a regime of toleration...
...96 • DISSENT...
...On this view, to invoke a right is to cut short political debate, rejecting the hard work entailed in building a democratic consensus in favor of a unilateral (and uncompromising) judicial strategy...
...Pornography and hateful speech are alike, the critics maintain, in that both tend to subvert our collective commitment to equality...
...Premised on the sovereign will of the majority, it accuses all rights of impeding the democratic process...
...If the courts declare someone in possession of a right, no matter how contentious the immediate issue on which the claim of right is founded, the whole business is placed beyond the reach of politics...
...The community is disempowered and fragmented...
...To the degree that our society is permeated by pornographic images, our culture becomes pornographic, and it is hardly surprising that women suffer from male violence and sexual abuse...
...How about a local referendum on abortion...
...Hate does breed hate...
...There is no disagreement that individual rights can obstruct the will of democratic majorities...
...Liberals are accused of treating rights-bearing individuals as though they were fully formed human subjects, equipped with their own tastes, preferences, and values, prior to their appearance in civil society when, in fact, the nominally autonomous subject is "socially constituted...
...The latter correctly identified property rights as a means of insulating the established unequal distribution of wealth from demands for social justice...
...It should not be thought, however, that liberal persuasion need be restricted to the form of moral argument best suited to philosophy journals...
...No doubt there is some merit to this, considering the extraordinary powers of our unelected (and characteristically conservative) judiciary...
...And yet this is precisely what communitarians on the left would have us believe...
...Once again, however, their position seems naive...
...Of concern are rights claims that threaten the collective identity of a democratic community...
...Where the liberal differs from communitarian critics on the left (and on the right) is over what is to be done...
...It requires that we make room in our political community for persons who are not like us and who may subscribe to rival conceptions of the good...
...This plurality of greater and lesser associations, and the freedom of persons to move among them—or outside of them—makes liberal civil society tremendously attractive...
...At the same time, new claims for rights deserve a fair hearing...
...It may come as a surprise that not all liberals would disagree with this assessment...
...Tearing down the bulwark of rights would expose the individual to the risk of a tyranny of the majority...
...Knowing that laws affect behaviors and believing (with good reason) that experiences shape attitudes, they would allow the community—armed with the coercive power of government—to curtail ways of living deemed subversive of the common good...
...But not all political questions can or should be put in the language of rights...
...Mill will surely want to argue over where to draw the line...
...In short, the argument goes, they must be banned on account of the ill effects they have on the character of our community...
...After the communications revolution there is no rural hamlet so remote as to be insulated from the ideologies purveyed nationwide by social and political movements...
...Rather, there are numerous communities differing in size and degree of commitment and distinguished by sometimes overlapping, sometimes incompatible conceptions of the good...
...It also requires that we be prepared to tolerate ways of living we find repugnant...
...Is there something wrong with rights that liberals had previously failed to notice...
...Who is to say that a democratic community would never feel itself threatened by religious nonconformity, social experimentation, or political dissent...
...The prospect of local diversity allows left communitarians to portray themselves as democrats and pluralists...
...instead, they would oppose it with education and counter-argument...
...These things are not in question...
...I find it inconceivable that the practice of toleration could be enforced without the doctrine of rights...
...Moreover, is there anyone who believes that a local referendum on pornography or hateful speech would not be targeted for intervention by organs of the religious right, the ACLU (American Civil Liberties Union), the NAACP (National Association for the Advancement of Colored People), and countless other interested groups...
...It seems to me that this is the crux of the matter, and the point at which communitarians leave liberalism behind...
...Anyone familiar with American society and politics knows this is patently false...
...I think the reason why is the same reason it appeals to conservatives...
...Marx understood property rights to serve the collective interest of the bourgeoisie...
...It is fraught with danger, from the liberal standpoint...
...As best I can make out, there is a growing number on the left who think that the answer is yes...
...The recent communitarian critique of rights focuses on the way in which rights serve personal rather than group or class interests...
...The essence of this critique is a full-blown assault on the liberal "atomization" of society—and corresponding 94 • DISSENT Notebook loss of community—believed to be encouraged by the individual's claim of politically unassailable rights...
...Applied to civil rights, however, this line of argument loses its radical bearing and only serves to deprive vulnerable minorities of hard-won legal protections...
...That's what rights are for, because sometimes the majority is in the wrong...
...Buy why do we recently find the doctrine of rights taking fire from the left in the pages of Dissent and elsewhere...
...Economic boycotts, public ridicule, and nonintercourse —shunning—can be legitimate techniques of persuasion (although liberals in the tradition of J.S...
...There can be no obligation to tolerate the rabidly intolerant...
...The doctrine of rights, on the other hand, is inclusive...
...The liberal advocates a social remedy, the communitarian favors a political remedy...
...And even among so-called First Amendment absolutists, few believe that the right of free speech entails a right to say anything to anyone at any place or any time...
...So, for example, among the communitarian critics we find feminists arguing against First Amendment protection for pornography and progressives who question the wisdom of extending speech rights to persons who employ racist epithets or otherwise incite racial and ethnic hatred...
...Conservative notions of "law and order" and "family values" clearly favor the state at the expense of the individual...
...If the communitarian position is as naive as I have made it out to be, why has it attracted so much interest on the left...
Vol. 39 • January 1992 • No. 1
