Tuesday, January 29, 2008

Quote of the Evening: Rights Talk

From the ever-brilliant Martha Minow:
"Rights" can give rise to "rights consciousness" so that individuals and groups may imagine and act in light of rights that have not been formally recognized or enforced. Rights, in this sense, are neither limited to nor-coextensive with precisely those rules formally announced and enforced by public authorities. Instead, rights represent articulations -- public or private, formal or informal -- of claims that people use to persuade others (and themselves) about how they should be treated and about what they should be granted. I mean, then, to include within the ambit of rights discourse all efforts to claim new rights, to resist and alter official state action that fails to acknowledge such rights, and to construct communities apart from the state to nurture new conceptions of rights. Rights here encompass even those claims that lose, or have lost in the past, if they continue to represent claims that muster people's hopes and articulate their continuing efforts to persuade.

Martha Minow, Interpreting Rights: An Essay for Robert Cover, Yale Law Journal 96 (1987): 1860-1915, 1867.

UPDATE: I should clarify that this is not the rights conception "from the left" -- it is part of the conception by Minow, and presumably some fellow travelers (which, in turn, includes me to some extent) -- most of whom, I admit, are "from the left" to greater or lesser degrees. We are, alas, not all that powerful people -- certainly, we are not the shadowy cabal that controls "the left" and dictates its opinions.


Nell Minow said...

Martha's family is enjoying your tributes very much!

Mark said...

So therefore the fetus and largely pre-rational/pre-verbal children as well as those in a coma have no rights and cannot have them, for they cannot utter, "articulations -- public or private, formal or informal -- of claims that people use to persuade others (and themselves) about how they should be treated and about what they should be granted."

Gotcha. That explains why the fetus and those others have no rights.

Can't talk.

David Schraub said...

Nell: *Blush*

If I knew the family was reading it, I'd turn down the sap a little bit. But the Professor has been a major influence and inspiration to me, and I'm very appreciative.

Mark: Mayhaps you're reading "articulations" a bit too literally?

Of course, it would be arguable that fetus' and young children and comatose persons don't have a "rights consciousness" precisely because they aren't at that stage of personal development. But a) "rights consciousness" is only part of how Minow conceptualizes rights, not the whole and b) if we extend her definition only a tiny bit, we could bring those groups in anyway because people do, in fact, articulate visions of rights that incorporate those people (if one considers a fetus a person), and (importantly) continue to do so even when the state claims that the right in question does not exist.

Since the three groups in question are always dependent on others to conceptualize and claim and implement their rights (whatever they may be), I hardly think Minow's model is uniquely deficient.

Stentor said...

I don't see what's "brilliant" about this quote. As far as I can tell, all she's saying is "nowadays, people make claims to certain kinds of treatment by asserting a 'right' to that treatment." I agree, but that seems to be a pretty commonplace idea.