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Discuss the value and limitations of rights discourse as a tool for justice and social change.

Discuss the value and limitations of rights discourse as a tool for justice and social change.

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An essay for the 2011 Undergraduate Awards (Ireland) Competition by Sarahrose Gourley. Originally submitted for M100 at Queen University Belfast, with lecturer Dr Sara Ramshaw in the category of Agricultural and Veterinary Sciences
An essay for the 2011 Undergraduate Awards (Ireland) Competition by Sarahrose Gourley. Originally submitted for M100 at Queen University Belfast, with lecturer Dr Sara Ramshaw in the category of Agricultural and Veterinary Sciences

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Published by: Undergraduate Awards on Aug 31, 2012
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01/03/2014

 
 Discuss the value and limitations of rights discourse as a tool for justice and social change.Rights-based strategies, as a vehicle for social change, have become an ever more prevalenttrend within our society. Rather than taking to the streets to campaign politically for justice,the courts increasingly provide the stage for issues of the disenfranchised to be addressed.Rights have come to dominate the
layman’s
language. The Critical Legal Studies movements[here-after CLS] strong critique of the rights discourse gives significant insight into thelimitations of using such a mechanism for social transformation. Particular focus will also bepaid on evaluating whether the CLS assertion that such rights-based strategies should beabandoned
for a more ‘grassroots’ political action
[away from the courts], have actually
‘jumped the gun’ in their goal to
achieve their utopian
vision of a world which is ‘more
communal and l
ess hierarchical.’
1
Thus, we will look at the critical race and feminist theoriesassertion that value still can be derived from such a discourse. Finally, we will consider thevalue of 
Wendy Brown’
s Foucaultian response to these arguments.Firstly, we will consider the CLS movement significant insights into the limitations of therights discourse. In order to understand their stance it is important to highlight that such acritique emerges from a general critique on liberal legalism. Liberal legalism purports an ideathat law is synonymous with justice. Injustice in society is to be resolved through the courtsin which an objective, impartial, neutral judiciary make a determinate judgment according tosame general rules in which like cases will be treated a-like.
2
This is epitomized withblindfolded Lady Justice. She is not swayed by subjective elements such as sex, race, class.The CLS movement assert that this representation of reality is a counterfeit. The law isanything but determinate,
especially in a liberal society in which there is ‘a series of 
contradictory dualities and values such as reason and desire, freedom and necessity,
individualism and altruism: autonomy and community and subjectivity and objectivity.’
3
 Here, law is seen rather as means of dealing with these conflicts. It is another form of politics.Thus, right-based strategies become a risky option for social change.Rights in themselves, by their very nature become 1] indeterminate and 2] highly
individualistic. Kennedy for example illustrates this ‘
indeterminacy
thesis’ by putting
himself in the hypothetical position of a federal district judge dealing with the rights of busdrivers within the setting of a union strike.
4
Here according to the rule of law the workerswho stage a lay-in, do not have the right to prevent the bus company from hiringreplacements and making use of the buses throughout the strike. However, whilst the judge isconstrained in his requirement to comply with legal text, issues of cost, reputation and theeconomy of the field; there still remains an element of freedom. The judge in this instancecan rework the question that of the strikers right of freedom of speech.
As Boyle reiterates ‘ a
 judge can produce a wide range of decisions which [are] formally correct under the canons of 
legal reasoning,’ which are the product of a ‘bevy of factors whose most marked feature isthat they are anything but universal, rational or objective.’
5
 
As Minow notes,’
any given set
1
 
Matsuda, M.J. ‘Looking to the bottom: critical legal studies and reparations.’ Harvard Civil Rights – 
CivilLiberties Law Review. [1987 ] p327
2
Douzinas, C & Greary, A. Critical Jurisprudence: The Political Philosophy of Justice. [ 2005] P136
3
Sparer, E.
‘Fundamental Human Rights, Legal entitlements, and Social Struggle’ [1984]
P516
4
 
Kennedy, D. ‘Freedom and Restraint in Adjudication:A critical Phenomenology’ [1986]
 
5
Boyle as quoted by Bix, p?
 
of legal
 principles can be used to yield competing or contradictory results.’
6
Tushnet forexample has highlighted both the technical and fundamental indeterminate nature of rights.Technically, rights claims are result of a balancing competing interest, including rightsagainst other rights. The fundamental indeterminacy of rights surrounds their abstract nature.
The language of ‘
autonomy or equal concern or res
 pect’ mean their specification is governed
by the social context from which they are used.
7
The problem with this is that
‘social
surroundings can be
readily placed in question.’
8
This makes right-based strategies appearunstable and limited in their ability for social change.This leads to new critical way of seeing legal victories. Significant social change is notguaranteed with the acknowledgement of a right. CLS movement sought to demonstrate thisthrough focusing on how progressives measures for equality such as that of Civil right Act1964 and other legislation that has been limited by the American legal system. Rights whichliberate at one moment can restrict at another. The CLS movement on this basis have assertedthat such reliance on rights may actually be harmful.
9
Tushnet for example believes work isneeded to connect
ideological
victories to material outcomes.’
10
In particular he drawsattention the limitations of the Brown case
11
on segregation in gaining equality. He equatesthe victory and any small successive change as indicative of what was already occurring insociety.
12
As David Williams put it the CLS movement have seen these
cases as ‘chimeras,
partial makeshift concessions whose principal function is to preserve the intellectual as well
as the social stability of the dominant order.’
13
Tushnet also acknowledges inevitable risks ingaining legal recognition of rights. As investment by the social movements is diverted to newareas, opposition is likely to intensify their energies in whittling down these rights.
14
 Examples can be drawn from the challenge faced by pro-choice movement after the victory inabortion laws in 1973. Pro-life mounted a significant stance by trying to enact restrictiveabortion laws.
15
 Secondly, the CLS movement assert that social change is limited due to the rights inherentindividualistic nature. This stems from Marxist perspective on the history from which rightshave emerged. The bourgeois inclusion of the proletariat did not lead to the end of theirsubordination.
16
 
The ‘
liberal rights
of man’
 
if fully realised would lead to ‘exploitation to the point of death.’
17
As Kennedy has purported, rights by very definition in this sense are
‘trumps’
18
against others. There is an inherent element of disconnection, selfishness rather
than ‘
consensus, sharing and sacrifice
.’
19
Examples are drawn from the fact that rights areprimarily based on negative rights, pertaining to freedom from interference from others ratherthan positive rights which are freedom to gain things.
20
This poses an ideological barrier to
6
 
see footnote [29] in Cummings, S.L. ‘Critical Reflection on Law and organising’
UCLA Law Review [2001]
7
 
Tushnet, M. ‘An Essay on Rights’ [1984] P1375
 
8
ibid
9
P1384 ibid
10
 
Tushnet, M . ‘The Critique of Rights.’ 47 SMU Law Review [1993/4] pp25
 
11
347 U.S 483 [1954]
12
Tushnet op cit [1993/94]pp28
13
 
Williams, D. Taking rights aggressively.’ 5 Law and inequality [1987/88]
P118
14
Tushnet, M . op cit [1993/4] P30
15
ibid
16
Kenned
y, D. ‘The Critique of Rights’ in: Brown, W & Halley, J. Left Legalism/Left Critique [2002] P215
 
17
ibid
18
ibid
19
ibid
20
 
Tushnet, M. ‘An Essay on Rights’ [1984] P1392
 
 
social movements groups.
21
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.
22
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.
23
Gordan also acknowledged
that the courts ability to ‘co
-
opt social mobilization,’ as reliance for social change shifted to
lawyers rather than community leaders.
24
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
will reap.’
25
 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
‘simply
politics dressed in different garb, it neitheroperates in a historical vacuum nor does it exist independently of ideological struggles in
society.’
26
By using the rights discourse therefore we are actually interpellated into thisideological structure. We accept the call into being as a legal subject.
27
Kennedy notes that
the rights discourse represents a ‘false consciousness,’ the abstract nature
of universal rightsworks as
a ‘
fantasy resolution of our contradictory experience.
28
 
 Not only are the ‘abstractciphers’ (such as that used in human rights discourse) divorced from
history , tradition andgender,
29
Douzinas &Greary
note the assertions of this mean ‘elemen
ts which makes ushuman are sacrificed on the alter of the abst
ract man;’
30
the irony being, that essence of thisabstract man is
white, heterosexual male bourgeois
.’
31
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.
32
Gabel and Tushnet for example emphasized that the rights discourseshould be replaced by the language of needs for a pragmatic basis.
33
Gabel for exampleasserts,
that rather than ‘tinkering with a legal system which legitimates [the progresses
21
Ibid p1393
22
Lobel, O.
. ‘The paradox of extralegal activism: critical legal consciousness and transformative politics.’
p947
23
 
White as quoted by Cummings, S.L.‘A Critical Reflection on Law and Organising’ 2001
p456
24
Gordan as quoted by Cummings, S.L. ibid
25
 
Brown, W. ‘Suffering the paradox of rights’ in: Brown, W & Halley, J. Left Lega
lism/Left Critique[2002]P423
26
 
Hutchinson &Monahan as quoted by Williams, D. ‘Taking rights agressively.’ P117
 
27
Douzinas, C & Greary, A. Critical Jurisprudence: The Political Philosophy of Justice. [ 2005] P221
28
 
Kennedy, D. ‘The Critique of Rights’ op cit P179
 
29
Douzinas, C & Greary, A. Op cit [ 2005] P212
30
ibid
31
ibid
32
Tushnet, M. op cit [1993/94] p25
33
Tushnet, M.op cit [1984] P1394

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