social movements groups.
The rights discourse runs contrary to solidarity, nor does itaddress the specific needs of the group. For example the civil right organisations have beencriticised for directing their resources in pushing for remedies through litigation rather thanattacking the more important redistributive problems.
In fact, the CLS movement purportsthat the courts actually depoliticalizes issues. Tushnet found that only marginal utility isachieved as rights are gained at the expense of larger issues. For example White inexperience of litigation post-
civil rights movement was that it ‘silenced’ poor people as their grievances had to be ‘repackaged’ in the lan
guage of the court.
Gordan also acknowledged
that the courts ability to ‘co
opt social mobilization,’ as reliance for social change shifted to
lawyers rather than community leaders.
Rights also have different empowering factors
according to one’s
ability to access the rights. As Brown as noted that generally
the moresocial resources and the less social vulnerability one brings to an exercise of a right, the morepower that exercise
This leads to the critical legal studies argument that rights based strategies are limited as theyperpetuate social hierarchies rather than resolve them. This is taken form the basis that rights,by their very meaning is historically conditioned. They are derived from law which hasemerged from an ideological structure. In adapting Marxist concepts, the CLS movementadapt the idea that the bourgeois revolution has removed politics from society to the state,depoliticalised the economy and has created a spilt in the realm of rights. This is typicallycharacterised by the public/private divide. In adapting the house metaphor, the law is notabout achieving justice but part of the superstructure which maintains and legitimatising themode of production. It is a bearer of ideology of the dominant class as Hutchinson&Monahan have commented, law is
politics dressed in different garb, it neitheroperates in a historical vacuum nor does it exist independently of ideological struggles in
By using the rights discourse therefore we are actually interpellated into thisideological structure. We accept the call into being as a legal subject.
Kennedy notes that
the rights discourse represents a ‘false consciousness,’ the abstract nature
of universal rightsworks as
fantasy resolution of our contradictory experience.
Not only are the ‘abstractciphers’ (such as that used in human rights discourse) divorced from
history , tradition andgender,
note the assertions of this mean ‘elemen
ts which makes ushuman are sacrificed on the alter of the abst
the irony being, that essence of thisabstract man is
white, heterosexual male bourgeois
The CLS scholarship gives warning toprogressive movements in their quest for justice. Rather than using right-based strategies,Tushnet proposes groups invest elsewhere, whether it be in marches, groups or communitiesof the disenfranchised.
Gabel and Tushnet for example emphasized that the rights discourseshould be replaced by the language of needs for a pragmatic basis.
Gabel for exampleasserts,
that rather than ‘tinkering with a legal system which legitimates [the progresses
. ‘The paradox of extralegal activism: critical legal consciousness and transformative politics.’
White as quoted by Cummings, S.L.‘A Critical Reflection on Law and Organising’ 2001
Gordan as quoted by Cummings, S.L. ibid
Brown, W. ‘Suffering the paradox of rights’ in: Brown, W & Halley, J. Left Lega
Hutchinson &Monahan as quoted by Williams, D. ‘Taking rights agressively.’ P117
Douzinas, C & Greary, A. Critical Jurisprudence: The Political Philosophy of Justice. [ 2005] P221
Kennedy, D. ‘The Critique of Rights’ op cit P179
Douzinas, C & Greary, A. Op cit [ 2005] P212
Tushnet, M. op cit [1993/94] p25
Tushnet, M.op cit  P1394