It has been an enormous honor for me to serve as the president of the Law and Society Association (LSA). Nevertheless, like many of my predecessors, I approached the challenge of choosing a topic for the ritual lunchtime address with a bit of trepidation. It seems that no matter what a president does over the two-year term, what most sociolegal colleagues remember is “the speech.” I heard that over and over, as people queried me about my topic and the type of talk I planned. So let me say at the start that it is not my inclination in this context, as many colleagues are finishing their desserts and coffee, to tell all of you that we in the Association need to be doing something new or different. I have already done lots of pushing and pulling in new directions over the last several years in other forums. Instead, I offer some reflections on a prominent intellectual tradition of our scholarship, one that has shaped and expressed the changing character of our Association over the last 50 years, and one that is inseparable from our modes of public engagement. The theme of my remarks today is our intellectual engagement as sociolegal scholars with the theme of rights.
Perhaps no topic, short of law itself, has been more central to the sociolegal legacy of scholarly inquiry than that of rights. It is worth remembering that Law and Society as an intellectual movement and professional association was born in the era of the U.S. civil rights movement.Footnote 1 The first volume of the Law & Society Review was published in 1966, when the ink was still drying on the 1964 Civil Rights Act and 1965 Voting Rights Act. In fact, the first special issue of LSR in 1967 (Vol. 2, no. 1) was on school desegregation in the United States.
The prevailing mode of inquiry in the early decades was gap studies that demonstrated how promises of rights often fall short in implementation as policy or practice (Reference Gould and BarclayGould & Barclay 2012). Empirical analysis often aimed to offer reforms that might close the gap and make law live up to its promises of rights recognition. Then, in the late 1970s, several waves of critical theory—first critical legal studies (Reference KairysKairys 1998), then critical feminist theory, critical race theory (Reference CrenshawCrenshaw et al. 1995; Reference Delgado and StefancicDelgado & Stefancic 2001) LatCrit theory (Reference LopezHaney Lopez 1996), and queer theory (Reference BowerBower 1994; Reference StychinStychin 1998)—began to interrogate the promises of rights in more analytically ambitious ways that questioned the emancipatory potential of rights and demonstrated the ways that rights conventions often support hierarchy, divert political struggles, and impede as well as advance social justice. Much of this scholarship focused on official case law, but it was soon joined by empirically grounded study and debate focusing on the degree to which legal and political mobilization by rights claiming groups or movements advanced egalitarian social justice or positive social change (Reference HandlerHandler 1978; Reference ScheingoldScheingold 1974). This interest in group-based contestation over rights was paralleled by an explosion of empirical scholarship studying individual disputing over rights and everyday legal consciousness, which included ample attention to rights consciousness. These currents of scholarship regarding both individual disputing and group politics around rights varied widely in epistemology and method, from positive quantitative (Reference Miller and SaratMiller & Sarat 1980–81) to qualitative inquiry, including interpretive ethnographic and interview-based study (Reference Ewick and SilbeyEwick & Silbey 1998; Fleury-Steiner & Reference Fleury-Steiner and NielsenNielsen 2006; Reference MerryMerry 1990; Reference SaratSarat 1990). And most of this scholarship in LSA was undertaken by scholars at U.S. institutions who focused on rights in the North American tradition or context.
The lessons of this rich scholarly tradition are many and cannot be fully covered here, but I will summarize a few highlights of what I have learned. I will save for the end my original title, which I abandoned. Instead, I have chosen to title this reflection “The Unbearable Lightness of Rights.” This title takes its point of departure, of course, from Reference KunderaMilan Kundera's (1984) provocative, controversial, unusual novel The Unbearable Lightness of Being. Kundera's novel was set in Czechoslovakia around the time of the Prague Spring in 1968, when a brief, hopeful surge by forces of local resistance was crushed by the Soviet military. I will not offer a detailed analysis of the book, including the author's refutation of Nietzsche, but rather I just draw on its leitmotif of lightness and weight to explore the paradoxes of rights that emerge from our scholarship.
In Kundera's scheme, weight, or heaviness, refers to our subjection to enforced social convention—to the myths and routines that promote conformity and restrict freedom. At the extreme, such conventions can be delusional lies that support violent hierarchy and control by the few, in both society and the state, as in the Soviet empire. By contrast, lightness is freedom and flight from such weighty obligations, conventions, and delusionary myths. But lightness and heaviness are not entirely discrete, antithetical forces; rather, they are interdependent and connected in paradoxical ways. Kundera writes that “(T)he heaviest of burdens crushes us, we sink beneath it, it pins us to the ground.” At the same time, though, he notes that the “heaviest of burdens is … (also) simultaneously an image of life's most intense fulfillment. The heavier the burden, the closer our lives come to the earth, the more real and truthful they become. Conversely, the absolute absence of burden causes man to be lighter than air, to … take leave of the earth and … become only half real, his movements as free as they are insignificant. What then shall we choose? Weight or lightness?” (1984: 5).
The novel does not side emphatically with either lightness or weight. Rather, it explores the efforts of four characters to struggle among these paradoxical, interrelated modalities in their daily lives, amidst an increasingly trying political context. While all the characters seek lightness to some degree, they are pulled in varying degrees by the weight of tradition and enforced social convention, and in some ways find themselves least free when lightest.
Rights and the Paradoxes of Lightness and Weight
Kundera's fictional narrative parallels how empirical sociolegal scholars have understood rights as a social convention—as lived practices, within social contexts in which rights conventions are enmeshed and constitutive of our identities as subjects. So what have we learned from all this sociolegal inquiry over several decades about rights traditions in the United States?Footnote 2 For the sake of brevity, I suggest four key paradoxes, each building on Kundera's concepts of lightness and weight.Footnote 3
Paradox no. 1: What Rights Claims Count?
The first paradox regards the range of possibilities for meaningful claims facilitated by rights talk. In short, how light or heavy is rights as discourse? On the one hand, rights talk is very light in that language is indeterminate, malleable, variable, and polyvalent (Reference BrighamBrigham 1996; Reference GlendonGlendon 1993; Reference Haskell and ThelenHaskell 1988; Reference McCannMcCann 1994; Reference MilnerMilner 1989; Reference MinowMinow 1987; Reference ScheingoldScheingold 1974). Especially important in this regard is the recognition that rights language is not discrete and insular, but rather rights talk as a practice is inextricably interrelated with, contingent on, and transformable by contact with other discursive resources and normative traditions. And it is this contingency and interactive quality that makes rights dynamic, ever open to reconstruction as a discursive resource of aspiration.
This is, for example, the clear implication of Robert Cover's provocative thesis about jurisgenesis, about the persistent proliferation of claims about justice and rights that percolate up from communities and movements in civil society (Reference CoverCover 1983). A key point of much sociolegal scholarship thus has been to demonstrate that such jurisgenetic proliferation of rights routinely emanates out of ordinary social life, often independent of direct influence from lawyers, judges, and state officials. This insight has been demonstrated repeatedly in research on everyday disputing among individuals (Reference ZemansZemans 1983). Perhaps no study has illustrated the dynamism and diversity in rights discourse as well as the recent book by my colleague Reference LovellGeorge Lovell (2012). His research documents hundreds of letters by ordinary Americans to the new Civil Rights Division in the 1939–1941 period. The letters reveal an extraordinary range of rights claims and discourses, often merging moral, religious, and local norms into constructions of rights entitlement. Lovell documents how inherently light, volatile, and malleable rights talk can be. Scholarship on group mobilization around rights likewise has documented the ways that “novel rights claims,” as Reference PollettaFrancesca Polletta (2000) labels them, frequently emerge from and animate social movements.
The lightness that permits such novelty to claimants also arguably signals a lack of weight as social power, however. Reference DworkinRonald Dworkin's (1978) famous claim that rights often “trump” other types of claims and values thus deserves qualification because rights in practice are far more limited in their inherent influence. After all, specific claims of rights are often met with opposing interpretations of that same right. Consider the long-standing, highly variable contests over the reach of freedom secured by property rights, or free speech rights, or rights against workplace discrimination. Moreover, claims of particular rights are often limited by claims of other rights, as when business owners claim property rights to hire whom they please as a limit on affirmative action for racial minorities or women. Finally, rights claims generally are often challenged by other social values, including democratic rule of the sovereign people, economic efficiency, or religious beliefs (Reference Goldberg-HillerGoldberg-Hiller 2004). In short, rights are never absolutes; rather, they simply confer authority to claims of entitlement whose restriction, modification, or denial is potentially subject to official legal procedures that assess and adjudicate the merits of competing claims (Reference StoneStone 2010: 35).
And, hence, we shift toward the other hand of the analytical legacy. In short, the historical process of accumulated official actions legislating or adjudicating rights and their principled logics imposes weighty constraints on new rights claims. As historical contests over rights become settled for periods of time, dominant groups and their official representatives routinely police the boundaries of prevailing rights constructions to sustain status quo relationships, limiting the possibilities of practical rights claiming to the terms of what is legally permissible. And it is this enforced, institutionally embedded “common sense” of rights discourse that works, as Reference BrighamJohn Brigham (1996) has put it, to “constitute citizen interests” and identities in routine ways. Rights become embedded in bounded, normalized discursive practices.Footnote 4
This insight is central to much sociolegal scholarship. For example, Scheingold's myth of rights is not just a “figment of our imagination,” but, as he says on his opening page of The Politics of Rights, it is “real” and material, enforced by dominant groups and institutions (1974: 3). A similar understanding is expressed in Reference CoverRobert Cover's (1983, Reference Cover1986) argument that judges “kill” off far more than affirm visions of rights that bubble up from below, and that coordinated state “violence” necessarily enforces these narrow, select, traditionally bound constructions of rights on subjects. Law is words, but what makes words into law is the jurispathic violence that narrows the range of acceptable appropriations of rights talk in institutional practice and then systematically obscures or “forgets” the legal violence to both novel ideas and vulnerable bodies in the name of those circumscribed official norms. Cover's concepts of jurisgenesis and jurispathy together capture the interrelated lightness and heaviness of rights as convention.
Of course, judges are neither independent actors nor even primary sources of these constraints on meaningful, actionable rights constructions (Reference McCann, Johnson and LovellMcCann & Lovell, 2014). The webs of instrumental, institutional, and ideological power that delimit rights and contestation over rights are complex, diffuse, and interdependent. For one thing, other, nonjudicial state actors kill off rights claims in similar fashion. Reference LovellLovell's (2012) aforementioned study is entitled This Is Not Civil Rights, because this is precisely what most administrative officials declared in denying appeals to rights by citizens in the pre-civil rights era. Equally important, organized social groups, including especially corporate actors, effectively neutralize many novel rights claims. In contests over basic rights, copious studies document, the “haves” usually “come out ahead” (Reference GalanterGalanter 1974), or at least prevail until circumstances force or permit concessions to specific claims (Reference BellBell 1980). Scholars who focus on rights “counter mobilization” (Reference DudasDudas 2005; Reference Milner and Goldberg-HillerMilner & Goldberg-Hiller 2003; Reference ScheingoldScheingold 1974) in particular have demonstrated how dominant groups stigmatize rights claims by marginalized groups—African-Americans, indigenous peoples, women, LGBT advocates, among others—as “special rights” that violate the principle of equal treatment or are otherwise rejected as alien to prevailing standards and values.Footnote 5
Understood this way, rights constructions ensure order less because they dupe or brainwash ordinary people than because they are harnessed to constellations of group power, institutional arrangements, and state force supporting traditional constructions of rights that are difficult or costly for most people, and especially subaltern or disadvantaged groups, to challenge and change. And such practical understandings of ordinary persons about the difficulties or costs of challenging the status quo order then often ossify into resignation and routine. As Scheingold put it, “we learn to adapt—to endure … and to despair” as we yield to the perception that “the existing order is inevitable” (1974: 132). The status quo is inevitable less because most people, and especially those who are marginalized or oppressed, cannot imagine an alternative order than because they cannot perceive realistic ways to realize those alternatives without risking great loss, perhaps even death. Again, rights are light as talk, but they are often weighty as institutionalized cultural practices.
Paradox no. 2: The Contradictory Promise of Individual Freedom
One specific implication of the previous paradox is that, while basic, widely recognized rights long have been associated with the promise of freedom, that freedom is highly limited and limiting (Reference RoseRose 1999). Indeed, more than a few sociolegal scholars have contended that the rhetoric of rights-based freedom in practice works as a weighty ideological force, not unlike what Kundera calls kitsch in the novel, that supports, legitimates, and authorizes deference to status quo hierarchies of wealth and influence. After all, the core rights enforced by dominant groups in the Western legal tradition have secured property, contracts, and other aggregations of unequal “private” power while individualizing subjects in ways that impede collective challenge to hierarchy in public life (Reference McCannMcCann 1984, Reference McCann, McCann and Houseman1989). The entire apparatus of law, however liberal in pretense, supports a highly unequal social order, which makes some rights bearers far more free than the great many others. This logic was brilliantly outlined by the great German philosopher, who identified citizen rights as a “political lion's skin,” an empty, abstract promise that held little power for emancipation from alienated, hierarchical market relations (Reference Marx and TuckerMarx 1978; see Reference Brown, Sarat and KearnsBrown 1995; Reference GoluboffGoluboff 2007).
Moreover, classic liberal and neoliberal rights define mostly procedural rights that place selective limitations on arbitrary violence by discrete actors but do not limit routinized systemic violence—financial penalties, incarceration, solitary confinement, and the likeFootnote 6 —and require few positive mandates for social equality and redistribution of power.Footnote 7 The latter point was nicely captured in Reference MacLeanNancy MacLean's (2006) book on struggles for substantive rights against workplace discrimination; in short, the negative rights-based logic of individual Freedom Is Not Enough to redress centuries of exclusion and exploitation of African-Americans, Native Americans, Mexican-Americans, women, and other groups. In this perspective, rights discourse is a limited, arguably illusory promise of individualistic freedom that normalizes and naturalizes the historically evolved status quo enforced by the legal and political establishment.
Reference ScheingoldStuart Scheingold's (1974) classic argument about the “myth of rights” as an individualizing ideology that binds us to the status quo of inegalitarian liberal society owes much to this vision. Scholars following Foucault have recognized in different but complementary terms how the conferral of rights status works as a regulatory discourse that constructs disciplined subjects who internalize imperatives of rational self-governance. Rights and freedom again go hand in hand in this account, and they together often do provide nonconformists and even dissidents limited protections from compelled obedience to arbitrary power and violence. Rights do cut multiple ways. But, overall, the “power of freedom” (Reference RoseRose 1999) that rights confer imposes a substantial burden of socially defined individual responsibility, a relentless weight that constructs subjects tethered to predetermined tracks of privatized deference to hierarchy. “While rights may operate as an indisputable force of emancipation at one moment in history,” Reference Brown, Sarat and KearnsWendy Brown (1995) has argued in an influential essay, “they may become at another time a regulatory discourse—a means of obstructing or co-opting more radical demands or simply the most hollow of empty promises.”Footnote 8
Kristin Bumiller's classic study of the dilemmas faced by minority citizens and women who experience injury well illustrates these dynamics. Her interviews reveal how claiming rights against race or sex discrimination individualizes the subject as a victim, discourages agency, and increases the sense of injury. “Individualization becomes a process of control—a mark of difference or a badge of stigma” (Reference Bumiller1990: 69; see also Reference Brown, Sarat and KearnsBrown 1995). Reference EngelDavid Engel's (1984) well-known study of Sander County shows convincingly how the pervasively enforced norm of “individual responsibility” discouraged adversarial rights claiming and enforced deference to community norms; respect for rights-bearing individuals ironically is won and sustained by forfeiting adversarial claims of rights. A book-length study that I conducted with Reference Haltom and McCannWilliam Haltom (2004) regarding the nationwide obsession with excessive rights claiming over personal injuries offered evidence that the same “common sense” ethic of individual responsibility was normalized through a complex mix of corporate advocacy and mass media practices. And Reference GilliomJohn Gilliom (2001) likewise demonstrates how intensive state institutional surveillance forces welfare mothers to maintain, often by deception, appearances of morally “responsible,” disciplined behavior to obtain the meager state support to which women are rightfully entitled.Footnote 9 In all these ways, the freedom conferred by basic rights is directly a product of complex regulatory mechanisms of responsibilization that weigh heavily on subjects.
Paradox no. 3: Who Can Claim Rights?
Rights not only confer a limited, paradoxical promise of freedom to citizens, but they are grounded in criteria that dominant groups use to justify exclusion of many persons and other entities from even this mixed promise of entitlement. This may seem counterintuitive, as rights are often hailed as a force of inclusive membership entitlement in the polity, and historically there is an element of truth to this claim. However, at every point in North American history, the standard of rights qualification also has been deployed as a normative force denying many people from even basic recognition and status as full citizens, i.e., as deserving the core “right to claim rights.” It is relevant to recognize that Western nation states originally constructed rights as part of a bargain for ruling authority with dominant social groups. Specifically, as Reference Tilly, Evans, Rueschemeyer and SkocpolCharles Tilly (1985, Reference Tilly and Mjoset1992) has contended, modern nation states initially consolidated their power to make war, reduce or eliminate rivals, and extract resources by making deals with some established or potential rival groups. In developing capitalist regimes, states offered protections for bourgeois property rights to owning classes in return for the latter's support as clients of state rulers, revenue contribution through taxation (and plunder of others), and participation in policing for security. In the United States, the initial group extended recognition as rights bearers were white, property-owning males who contracted as subjects in the new political economy. The historical social contract securing rights status for citizens thus was exclusionary on the basis of race and gender, among other criteria, at its very core (Reference Lovell, McCann, Wolbrecht, Hero, Arnold and TilleryLovell & McCann 2004; Reference MillsMills 2008; Reference PatemanPateman 1988).
These dominant groups who allied with the state became both the key actors and the normalized, unquestioned standard adjudicating entry for other groups seeking inclusion in the community of rights bearers over time.Footnote 10 The previously discussed premise that rights-bearing subjects must be disciplined, rational, and conventional to deserve rights has provided a justifying, even motivating logic for denying rights to select categories of people because they are allegedly incapable of, or resistant to, demonstrating such responsible self-governance. The liberal society of rights-bearing subjects thus did not abolish status and tribal distinctions; rather, the new order transformed status into individual terms of merit and character that have sustained hierarchies of lawful power and authority distinguishing between relative insiders and outsiders as well as among insiders to the community (Reference ShklarShklar 1989; Reference SmithSmith 1997; Reference StychinStychin 1998). Dominant groups in North America—for several generations, white, mostly propertied males—interpreted those terms of discipline in different and often shifting ways over time, constructing ideas about race, ethnicity, gender, sexuality, family, education, and a host of other markers to determine the boundaries between deserving subjects entitled to rights and undeserving outsiders accorded few or no rights.Footnote 11
This key point was well recognized by Dr. Martin Luther King, in his famous “Letter from a Birmingham Jail.” King wrote that “We hold these truths to be self-evident, that all men are endowed by their creator with inalienable rights. That's a beautiful creed.” As such, King celebrated rights, our creed, as an aspirational concept. Indeed, King appropriated rights claims to challenge not just the many manifestations of racial apartheid in the United States, but also the poverty and the deprivations it imposes on many. But it is vital to read what he said next: “America has never lived up to it” (Reference King and KingKing 1964). In short, his wise words suggest that it is not the language of rights so much as the larger institutional and ideological structures of exclusionary power and privilege, of “America,” that most constrain who is respected as rights-bearing subjects and what rights structure our social lives. Again, recognition as a deserving rights-bearing subject requires the construction of subjectivities that fit, confirm, serve, and sustain dominant social relationships. And hence the history of struggles by various groups—indigenous peoples, people of color, women, immigrants, people with disabilities, LGBT persons, and other groups—to demand recognition of qualities ostensibly that match the baseline of rational, disciplined subjects.
Much historical sociolegal scholarship has documented these struggles over who can claim basic rights as well as the substantive reach of those rights. Sociolegal scholars have also interrogated the plight of those who intrinsically remain qualified for only limited rights status, like undocumented immigrants or children or the mentally ill, or from whom rights have been withdrawn, such as criminals and political subversives.Footnote 12 For these beings, failure to live up to the responsibilizing demands of freedom, as defined by dominant groups, threatens to doom subjects to forfeiture of rights and subjection to harsh forms of paternalistic control, repressively punitive law by the criminal justice system, or what Reference BiehlBiehl (2005) calls “social abandonment” (see also Reference CoverCover 1986).
But perhaps the most unique contribution of sociolegal scholarship has been in exploring the many ways that people who are formally recognized as deserving rights as citizens remain relatively rightsless in varying degrees in many spaces or dimensions of modern social life. Long-standing prejudices, assumptions, and stigmas about undeserving, untrustworthy character or lack of merit continue to disqualify or reduce the respect and freedom that rights are assumed to confer broadly. Again, studies demonstrating the gap between the promise and fulfillment of rights led the way, followed by many scores of studies exploring variations in rights consciousness, rights claiming, and the ways that rights do or do not matter in widely varying ways for differently situated and socially constructed subjects. Sociolegal studies of local community hostility toward “outsiders” in Reference EngelEngel's (1984) narrative, of poor welfare mothers (Reference GilliomGilliom 2001), of contemporary Native Americans resentfully relegated to un-American status (Reference DudasDudas 2005), of disabled and mentally ill persons (Reference Engel and MungerEngel & Munger 2003; Reference FailerFailer 2001), of abused women who fail to qualify as “good victims” (Reference MerryMerry 2003), of people designated as “fat” (Reference KirklandKirkland 2008), and of many more subjects demonstrate this point about the exclusionary workings of rights in practice. All in all, rights remain unbearably light as sources of justice because many members of dominant groups in and beyond the state find that granting full respect to others as equals often is simply unbearable.
Paradox no. 4. Rights as a Potential Resource for Social Justice
The hope that rights can advance social justice and inclusive recognition returns us to the first paradox—that the inherent lightness of rights as talk has invited one of the most persistent critiques of rights. In short, if rights are so light and supple, they must also mean very little and carry little weight as a challenge to the status quo; they are merely the superficial “um” and “ah” of social and political banter, mere talk rather than action with sufficient material consequence to compel respect. Such was the gist of Jeremy Bentham's challenge that human rights is “nonsense on stilts,” of many critical legal theorists' challenges about indeterminacy of rights, and of some positivist empirical scholars assertions that rights are “just words” (Reference Bartholomew and HuntBartholomew & Hunt 1990; Reference HorwitzHorwitz 1988; Reference McCann, Johnson, Lovell, Scheingold, Smelser and PaulMcCann & Scheingold 2014; Reference RosenbergRosenberg 1991; Reference TushnetTushnet 1984; Reference WaldronWaldron 1987).
But rights, sometimes, can gain weight as a resource for egalitarian challenge and transformation when they animate organized collective challenge by exploited, excluded, needy, or righteous persons. This is the central point we came to identify with what Reference ScheingoldScheingold (1974) called the “politics of rights.” At least two endeavors are necessary to add weight to rights claims that contest prevailing arrangements and open up possibilities for social justice to individuals and groups. The first of these has to do with constructions of rights themselves. Sometimes, of course, injustice follows from failure of settled rights to govern social practice, so struggles are simply aimed at reconciling promise and practice. But, quite often, rights must be reconstructed to fit new situations, aspirations, or claimants, and often joined to transformational visions of justice. In this regard, the polyvocality and indeterminacy of rights as (light) language can pose a “potential problem for, rather than a necessary product of, sovereignty” and regulatory discipline (Reference McClure, Sarat and KearnsMcClure 1995: 164). In contexts where liberal rights talk is a dominant discourse, this reconstruction often entails turning some elements of rights, those offering a modest democratic and inclusionary nod to equality for all, against other elements, especially those more market-oriented, proprietarian elements protecting private power and social hierarchy as well as limits on state action.
This is the argument of Reference BrownWendy Brown about the potential of rights as a limited but essential moderating force on unequal power in the neoliberal age (2003). It is important, though, that Brown further contends that liberal norms of equal respect alone do not go far enough, so they must be supplemented by ideas and values—such as care, fairness, mercy, or social justice—beyond liberalism to make rights serve more democratic ends.Footnote 13 Critical race scholar Reference WilliamsPatricia Williams (1992), in one of my favorite texts, imagines the challenge differently—as a process of alchemy, where the liberal principle of equal respect for interdependence actually can transform the proprietarian tradition of rights:
The task …, then, is not to discard rights but to see through or past them so … that property regains its ancient connotation of being a reflection of the universal self. The task is to expand private property rights into a conception of civil rights, into the right to expect civility from other … Society must give them away … Give to all of society's objects and untouchables rights of privacy, integrity, and self assertion; give them distance and respect. (1991: 164)
Sociolegal scholars have demonstrated that simply constructing compelling rights claims and justifying standing as rights claimants is hardly enough, though. Discursive reconstructions of rights must be supported by material organizational power that poses an instrumental counterweight to status quo institutionalized hierarchies. This means, of course, that rights claimants must mobilize material resources and support networks—money, advocacy organizations, allies in other groups and the state, and experts, including lawyers. This mobilization of political and legal resources, whether by defiant individuals or groups, is how rights are made real, as Reference EppEpp (2009) aptly puts it. Or, continuing my central metaphor, the issue is how rights sometimes help make social justice advocates into political heavyweights. To paraphrase A. Philip Randolph, “Rights are never given, they must be won, again and again” (Reference AndersonAnderson 1973: v).
Whether as individuals or activist groups, those who challenge the status quo on behalf of new rights cannot just will their way to change, of course. Also required in most cases are changes in power relations beyond the control of rights claimants (Reference BellBell 1980). Indeed, advances in new rights claims usually require broad, often unexpected ruptures that render dominant groups, relationships, and practices vulnerable to challenge. And such fissures or faults in structures of subjugation often generate new “unruly” subjectivities and rights claims capable of challenging, perhaps even transforming, rather than being singularly produced by, power (Reference McClure, Sarat and KearnsMcClure 1995: 187). My own work has drawn on social movement theory to explore how a host of broad social changes opened cracks in the prevailing patriarchal power structure to support a momentary challenge from gender-based pay equity activists in the 1980s (Reference McCannMcCann 1994; see also Reference AlbistonAlbiston 2010; Reference StrykerStryker 2007). Such opportunities and cracks are critical to change, but they are often small, short lived, and contradictory, severely limiting the possibilities for dramatic change, except in extraordinary moments.
Summary
All in all, then, rights as social practice are fraught with paradox and irony. Hence, the dominant lesson that we can take from decades of sociolegal study in the United States: what rights mean and how they do or do not matter as practices varies with the specific contexts in which they are embedded. Rights are contingent, at once unbearably light and fundamentally heavy in varying relationships.Footnote 14 And studying these variations of rights practice has defined a key theoretical and empirical challenge for a generation of scholars in the Law and Society Association.
Rights, Globalism, and the Current Law and Society Association
The bulk of the scholarly inquiry focused on rights that I just labored to distill loomed large in the LSA from the late 1970s into the 1990s, what we might call the second, post-realist generation of sociolegal scholarship. And, again, I underline that most of it was by scholars employed in U.S. academic institutions, studying rights practices and struggles in the United States.
At the same time, though, of course, politics around the world was increasingly marked by struggles over basic rights. Sometimes the rights at stake were national or local in origin, often in the process of being written into or interpreted in relationship to new constitutions. Sometimes the focus was international human rights. And increasingly, struggles involved some mix or clash among these plural legal norms. Not surprisingly, this politics of rights generated much attention from international intellectuals and scholars outside the United States.
Milan Kundera, author of the book on which this talk draws, was one such engaged intellectual. Kundera staked out a quite well-known critical view about the proliferation of rights politics during 1970s, one that echoed critical scholars on the Left and Right in the United States. In his 1990 book, Immortality, Kundera scorned the faddish popularity of rights, which had become a light veil for selfish desire.
… (T)he more the fight for human rights gains in popularity, the more it loses any concrete content, becoming a kind of universal stance of everyone toward everything, a kind of energy that turns all human desires into rights …The world has become man's right and everything in it has become a right… (1990: 140)
This dismissive critique in turn led to a bitter debate with a fellow Czech author, poet, and dissident about the meaning of the Prague spring and the value of collective protest at that historical moment (Reference WestWest 2009). The other figure, of course, was Reference HavelVaclav Havel (1994), who became a leader in the Czech resistance and eventually a widely celebrated advocate of human rights. Havel knew well the lightness and insubstantiality conveyed by rights talk. In a 1994 speech, he addressed in his own way the lightness of rights:
The idea of human rights and freedoms must be an integral part of any meaningful world order. Yet, I think it must be anchored in a different place, and in a different way, than has been the case so far. If it is to be more than just a slogan mocked by half the world, it cannot be expressed in the language of departing era, and it must not be mere froth floating on the subsiding waters of faith in a purely scientific relationship to the world. (Reference HavelHavel 1994)
But Havel rejected Kundera's position as cynical and resigned. Havel instead recognized how rights as symbols can gain positive weight through collective action. And that was what he did—he spoke up and put his life on the line, protesting and leading political opposition that exploited the cracks and fissures of vulnerable institutional power that he perceived around him (Reference WestWest 2009).
I do not know how many U.S. sociolegal scholars were attentive to this clash in central Europe during the early 1970s. But I do know that a host of scholars who identified with the LSA, most of them anthropologists or law professors, did focus their research on disputing practices in many places far beyond the United States—in Asia, Latin America, Europe, and Africa. These U.S.-based pioneers of international sociolegal study included: Laura Nader, Sally Falk Moore, Red Schwartz, Rick Abel, Marc Galanter, David Trubek, Stewart Macauley, David Engel, and Barbara Yngvesson, to name just a few. These U.S.-based scholars in turn connected with and drew attention to brilliant activist intellectuals from outside the United States whose research on disputing was joined to deep commitments to human rights. There were, again, many key figures from abroad—including Upendra Baxi, Neelan Tiruchelvam, Masaji Chiba, Boa Santos, John and Valerie Braithwaite, Keebet and Franz von Benda-Beckmann—who were brought into contact with the LSA.
For a long while, however, most of us scholars who focused on rights in the United States pursued our research largely independent of that international scholarship. This is curious because some of the most influential U.S.-based architects of the disputing paradigm directly linked their research within the United States to research beyond the United States in productive ways. Still, many of us read Marc Galanter on “Why the Haves Come Out Ahead” (1974) but did not read his parallel work on disputing in India (1989); we read David Engel's “Oven Bird's Song” (1984) but not his research on disputing in Reference EngelThailand (1975); we read Reference ScheingoldScheingold's Politics of Rights (1974) but not his groundbreaking study of how the European Court of Justice contributed to development of transnational rights (Reference Scheingold1965); we read Reference AbelRick Abel's copious writings on the legal profession and torts in the United States, among other topics, but did not read his work on Dutch colonial legal inheritance and, especially, South Africa (1995).
Eventually, though, many of us who began as narrowly insular U.S.-based scholars of rights discovered these connections, expanded our horizons, and shifted our interests in rights outward beyond the United States, where human rights is often the leading discourse of aspiration and struggle. I underline as especially influential for these transitions our increasing interactions with Canadian scholars, who helped many of us to recognize our narrow, parochial, sometimes imperial inclinations.
My key point is that the convergence of these interrelated developments in rights scholarship has been both a product and producer of internationalization in the LSA over the last 20 years. By reaching out to, and welcoming in, scholars from around world to an unprecedented degree, the Association has become quite different in identity, mission, and practice. It is probably ill advised to identify a critical moment in this transformation, but I would pinpoint as pivotal the publication of the Law & Society Review special issue on Southeast Asia in 1994 (Vol. 28: 3). In that same year, the annual meeting keynote address was delivered by president Sally Merry, a leading scholar whose research agenda was shifting from ordinary disputing among working class people in the United States to disputing over gender violence and women's rights beyond the U.S. mainland, first in colonial and post-colonial Hawaii, and then in Asia and other regions outside of the United States (Reference MerryMerry 1995, Reference Merry2006). Merry invited Boa Santos to deliver the 1995 address (Reference SantosSantos 1995), and other presidents—including Reference SilbeySusan Silbey (1997), Reference EngelDavid Engel (1999), and Reference MungerFrank Munger (2001)—focused their addresses in subsequent years on scholarship that merged attention to legal practices and human rights within and beyond the United States.
I offer two crude indicators of this transformation. First, in 1989, the initial year for which we have good data, less than 15% of LSA membership was from outside the United States. In 2011, the absolute number of non-U.S. members increased by 2.5 times, and the percentage of members who identified themselves as non-U.S. grew to over 35%.Footnote 15 This does not count the jointly sponsored international meetings. And the numbers continue to increase. The other crude indicator underlines the role of rights research in this period: in the last 13 years of LSR volumes, LEXIS/NEXIS lists the concept of rights has been mentioned 544 articles, which is nearly all. Of those, 162 articles, around one-third, explicitly mention international human rights.Footnote 16
So what has the research about rights around the globe demonstrated? Well, as evidenced by the debate between Kundera and Havel, many of the same insights about the paradoxes, ironies, and contradictions of rights that emerged from study in the United States show up in the politics of rights in the rest of the world. However, there are important differences regarding the range of active players and institutional context. I briefly mention two.
The Global Lightness and Heaviness of Rights
My first point is that globalization has revealed that rights are both lighter and heavier than we might have previously imagined. To a large extent, of course, traditions of rights were introduced through European and American colonial intervention throughout much of the world, especially in the Global South. Diverse traditions of rights were transported by merchants and missionaries alike, as powerful foreign agents negotiated deals offering unequal benefits backed by force to local elites, who in turn fortified their shared rule over colonial subjects, to some extent replicating the construction of institutionalized rights within northern nation states in the early capitalist era (Reference Comaroff, Sarat and KearnsComaroff 1996; Reference MerryMerry 2000). These initial movements of rights discourse often were heavily supported by material force, violent harm, and institutional transformation.
Such initial flows of rights have continued in the global era as new forms of colonial force securing the ideological as well as institutional power of the North (Reference SilbeySilbey 1997). Reference HussinIza Hussin's (2012) research draws the parallel in provocative fashion. She traces how the first “circulation” of English administrative and criminal law throughout the British empire in the nineteenth century was followed by circulation of newer but related ideas about “the rule of law” and, importantly, subject rights in the later twentieth century. Studies of rights construction in both earlier and contemporary eras frequently use images of “travel” to convey this lightness in the more recent period. I think of Reference HeyerKatharina Heyer's (2000, Reference Heyer2002) splendid work on disability rights in Asia, the United States, and Europe over recent decades. Other scholars (Reference EppEpp 1998) use similar images to capture how rights move, whether through networks of rights activists, proselytizing lawyers and legal reformers, formal education in internationally oriented law schools, or state actors aiming to elevate their status in global economic exchanges, among others. Much of the contemporary flow is still from North to South, but there are many points of mutual influence in various contact zones.
That rights talk travels easily is not the only important aspect of its lightness. Moreover, the discursive indeterminacy and malleability of rights discourse facilitates routine contact and common merger with diverse local traditions, norms, and constellations of institutional practice and power. This blending or mixing of transnational and local rights constructs has been the theme of many different studies. For example, scholars have demonstrated that some non-Western nations, like China or Japan (Reference FeldmanFeldman 2000), have their own traditions of rights-like conventions that not only parallel Western liberal conventions, but which make connection with Western-derived international human rights quite feasible. In this regard, I think especially of Reference OsanlooArzoo Osanloo's (2009) fine work demonstrating that, in Iran, new hybrid constructions of women's rights have blended elements of Islamic Sharia law and international human rights.
Osanloo's research confirms that, despite the claims to universalism at the heart of human rights discourse, the global proliferation of rights talk has not produced normative uniformity. Rather, as Boaventura Santos speculated years ago, we are witnessing a multiplication of rights constructions as international, national, and local norms collide, merge, and produce new hybrid meanings in different contexts (Reference SantosSantos 2002). Mark Goodale has recognized this as the “intriguing aspect of current transnational legality: its production of normative pluralism—and a new source of social resistance—through universalist (and thus homogenizing) discourses of human rights” (Reference Goodale, Goodale and Merry2007: 135). Rights have never been lighter, it seems, as the possibilities of “glocalized” rights hybrids multiply. And such transformations in rights can be weighty. Santos' study of the World Social Forum, for example, illustrates how some of these hybrid rights constructions express a “subaltern cosmopolitan legality” that directly challenges neoliberal globalization (Reference Santos, Santos and Rodriguez-Garavito2005: 44–58).
But most scholarship also shows that these flows of rights are not frictionless or easy. Many scholars have demonstrated the complexities and problems of what Sally Merry calls “translations” among international rights and national or local norms. Reference MerryMerry (2006) explores a variety of contradictions or conundrums in which the very lightness of rights reconstruction often limits or denies rights transformative power. This lightness of meaning in many contexts is paradoxically also a product of the weight that rights carry from outside of local cultures, especially their often perceived alien status in the South as modes of new colonial imposition from the North. Reference EngelDavid Engel's (2012) marvelous study of personal injury in Thailand provides a powerful warning in this regard. While increasing numbers of cosmopolitan elite activists embrace and advocate human rights, Engel shows, these rights discourses often are implicated in global forces that decimate cultural traditions long connecting ordinary people in rural areas while offering few meaningful new resources for practical activity and relationships.
Finally, whatever their promises of formal equality and individual freedom, in practice human rights often deliver little beyond the limits of neoliberal civil and political rights (Reference BarzilaiBarzilai 2005). Such rights can be empowering in valuable ways, especially in challenging excessive state violence. But they offer thin, or light, challenges to global market imperatives that increase economic and political inequality and new forms of subjugation. Indeed, rights-based agendas enforced by powerful global corporate and political actors routinely accelerate market logics that reduce local control and support increasing hierarchy. This is the thrust of Reference EnglundHarri Englund's (2006) devastating analysis regarding how discourses of human rights and liberal freedom impede struggles against poverty and injustice in emerging African democracies. Human rights “abstractions” occlude rather than address social differences, and hence “foster elitism and undermine substantive democratization,” Reference EnglundEnglund concludes (2006: 9). My colleague Reference GodoyAngelina Godoy's (2013) book makes a similar point about free trade agreements and the limits of human rights to challenge exploitation of Central American communities by multinational pharmaceutical companies. Rights in these accounts are not only too light to deliver on justice and empowerment: as in the United States, rights can divert from justice and even be destructive.Footnote 17
The Radical Differences of Institutional Context
The second important point that these studies help us to understand is that institutional structures of power and authority around the world, and especially in the global South, are often very different from those in the United States. Much sociolegal scholarship thus focuses attention to the interplay of three types of organizational factors that shape the potential for rights advocacy: First, available institutional structures for adjudicating disputes over rights, especially at the nation state level but also at transnational or international levels; second, indigenous social movement organizations and what Reference EppEpp (1998; Reference SimmonsSimmons 2009) has called their available legal “support structures;” and third, international nongovernmental organizations (NGOs) and movement allies.
Sometimes, social movements, transnational NGOs, global pressure, and local governments converge in supporting novel rights claims challenging an injurious status quo. Rights campaigns proved transformative in Heinz Klug's study of struggles over antiretroviral medicines to combat Reference Klug, Santos and Rodriguez-GaravitoHIV/AIDS in South Africa (2005), and in Reference Rodriguez-Garavito, Santos and Rodriguez-GaravatioCesar Rodriguez-Garavito's (2005) study of campaigns for workers' rights against Nike apparel sweatshops in Mexico. Likewise, as my colleague Reference CichowskiRachel Cichowski (2007) and others have demonstrated, the development of transnational judicial institutions has catalyzed a vibrant civic culture of rights activism at local, national, and transnational levels throughout the European Union.
More often, however, state elites are captured by neoliberal incentive structures and network allegiances, and thus offer more opposition than support to subaltern groups who are pressing policies, relationships, and control wedded to alternative conceptions of social or community rights. This again is illustrated by Reference GodoyGodoy's (2013) study, where state elites sided with global corporate forces against local communities. Often, state actors simply lack the resolve to deliver on rights, including those rights that their own official lawmakers mandate, to reform traditional hierarchical arrangements, and to recognize citizen entitlements. This is the story that Reference AtuaheneBernadette Atuahene 2014) offers about the limited fulfillment of legally authorized restitution and recognition to dispossessed peoples in urban areas of South Africa whose property had been taken during the colonial and apartheid eras.
In many other contexts, by contrast, state institutions are insufficiently developed to adjudicate or administer rights claims of citizens. For example, Reference MassoudMark Massoud (2013) shows how human rights add up to an empty promise for people lacking key resources and institutional support in contemporary war-torn Sudan. Similarly, many challenges and disputes over rights in the global era of multinational capital require transnational or regional adjudicatory or policy institutions that have not yet developed. On the other hand, however, Reference LakeMilli Lake 2014) has shown how undeveloped state institutions in the Republic of Congo have actually created opportunities for human rights activists to prosecute widespread gender violence.
All right, enough. I obviously cannot fully address the complexities and challenges that the manifold scholarship in recent years has demonstrated about struggles over rights around the world. Again and again, though, we see how the unbearable lightness of rights is rife with paradoxes that magnify in most international contexts the limitations and challenges we know in North America. The possibilities continue to multiply, but those promises are often resisted or co-opted by the weighty realities of instrumental, institutional, and ideological power.
Back in the United States-LSA: Transforming Who We Are and What We Do
The project of internationalizing sociolegal study of rights, of looking outward and welcoming in, has not simply been a linear process of multiplying cases, adding knowledge, increasing dialogue, and expanding the comparative purview of analyzing rights, however. At the same time, these developments have qualitatively transformed how we understand the traditions of rights development and struggle within the United States, the national home of LSA.Footnote 18
For one thing, we have learned that both the popular faith in rights and the contentious politics of rights are not markers of U.S. exceptionalism; instead, rights are all over … on a global scale. Moreover, learning about rights practices beyond the United States has compelled many of us to rethink how global forces and international engagements have, from our very origins, shaped American traditions of rights. The forces of the world beyond our borders are an important part of the context that we must study to understand the constraints, pressures, and possibilities of rights in our tradition. We have learned that all of us must bring to the study of the rights practices and struggles in the United States the same focus on international and global factors as we bring to any other site.
After all, the United States fought against European colonial power in order to secure its core constitutional rights, if initially only for white, property-owning men. At the same time, experiences as an expanding post-colonial settler nation, then colonial power, and then imperial international economic, military, and cultural force at every point shaped the development of rights. Ceaseless encounters with peoples from outside of our borders—from imported slaves to dispossessed and murdered First Peoples in the West to steady waves of immigrants from all over the globe—have forced ongoing reconstructions of the American community, renegotiations of citizenship rights to have rights, and the terms of those specific rights. The burst of new studies over a decade ago demonstrating how WWII and the Cold War powerfully influenced the U.S. civil rights movement is one example of this understanding (Reference DudziakDudziak 2011). Ongoing studies about how the Global War on Terror has redefined the reach and meaning of civil liberties in the United States offer other examples. And by analyzing American traditions of rights in a global context, such studies more deeply politicize our understanding of rights by focusing us on questions of power, and of the clash of hegemonic and counter hegemonic forces within the United States as well as throughout the world.
In short, recent transformations in our Association underline that the familiar American academic convention of distinguishing between U.S.-focused sociolegal scholars and comparative or international scholars is wrongheaded and archaic. This recognition has altered both teaching and research for many of us. My own courses on the politics of rights are far less U.S.-centered now than 15 years ago, and they enlist large numbers of international students. My present National Science Foundation-funded research, with colleague George Lovell (in press), represents a departure as well. We focus on how the U.S. military invasion and then colonial rule fundamentally shaped the course of social, political, and legal development in the Philippines over the last century in ways that undercut possibilities for democracy and social justice. At the same time, however, we emphasize how the struggles of immigrant Filipino workers importantly contested and shaped the development of U.S. law, including immigrant and citizenship rights, workers' rights, free speech rights, and civil rights. It is a story that demonstrates the abundant lightness of defiant transnational rights reconstruction, but also how the tragic weight of struggles for rights took a heavy toll on labor activists, including the murder of two young union leaders, who demanded human rights for working people both in the Philippines and on the U.S. mainland. The historical drama was as heavy as the Prague Spring described by Milan Kundera, but the commitment to radical human rights that animated the young Filipino activists was as inspiring as for the political idealist Vaclav Havel.
Conclusion
I conclude by suggesting that the related internationalization of sociolegal scholarship on rights has changed more than just intellectual study and teaching for many of us in LSA. It has transformed us in more foundational ways. I offer three quick points.
First, internationalizing and globalizing our scholarship about rights is more than an academic exercise, a new fad in the academic asylum. Rather, it is a foundational dimension of our engagement with the world. Our scholarship and teaching about rights affirms that rights matter, thus adding weighty significance to rights-based aspiration (Reference MungerMunger 2001). It is relevant in this regard that, a dozen or so years ago, I was a member of a group of well-known sociolegal scholars, many of whom are in the room today, who planned a book of essays on rights as practice. Our informal title, before we abandoned the project, was “Rights Suck.” In fact, that was my original title for this talk. I think we in the group knew why we chose that label, but also why it was wrong headed. We study rights because, whatever their limits, their lightness, and their paradoxical heaviness, they can and often do matter in struggles for social justice, especially given the limited availability of alternative normative discourses. And, I suspect that such qualified commitment is shared by many of you in this room.
Second, our increased sensitivity to the contingency and complexities of global interdependence also provides much reason for humility, especially in encounters by those of us from the Global North with those in the South. The more we in the privileged North learn about practices and struggles around the world, the more wary we should become about our own narrow local assumptions and commitments, which can be unwittingly complicit in imperialism, neocolonialism, or just stupidity (Reference SilbeySilbey 1997). As this year's International Prize winner, David Nelken, has demonstrated at length, comparative analysis of different geographic and historical contexts demands sensitivity to the interconnected components of sociolegal organization, and the ways that legal transfers, including translations of new rights, can wreak havoc and divert as well as serve justice. Again, we need to reduce the lightness of our abstractions with the weight of attention to institutional complexity and grounded experience in multiple contexts.
Finally, for those of us in the United States, a global sensitivity should highlight for ourselves, our fellow citizens, our students, and especially elite power wielders, just how narrow our rights traditions are in the United States, and how Americans' fidelity to those inherited ideas leads us to ignore and foreclose what Milan Kundera calls “unrealized possibilities” for reconstructing our community and its influence in the world. Indeed, this is what Boaventura Santos has called critical theory: the inquiry into the “possibilities … that exist beyond what is empirically given” (quoted in Reference MungerMunger 2001: 9). In this regard, a major contribution of sociolegal scholars is to direct attention to novel ideas about rights and justice taken seriously elsewhere but ignored, misunderstood, or undervalued in our own legal establishment.
And that is my parting exhortation. By framing our inquiries regarding rights in comparative international and global perspective, we are better able, as Patricia Williams put it so beautifully, to “give” to “ourselves” the promise of human rights as social rights, as recognition of our interdependence and common vulnerability, of demands for mutual respect, of sublimation of power as interest into solidarity animated by social justice (1991: 164; see also Reference FinemanFineman 2008). That is the alchemical normative quest of mobilizing reconstructed rights discourses that demands scholarly attention and support. And such engagement with rights should be and will be one of the nobler legacies of the LSA for decades to come.
Thank you.
