Special Issue Revisiting Rights: Volume 48

What does it mean in practice to claim a right? Does claiming a right add to the persuasive power of political demands? Does it clothe political demands with a moral urgency, setting such claims apart from the ordinary class of interests? In examining these questions, I suggest that in practice rights’ claims add little to political discourse. This is because Americans equate their policy preferences with rights. I find scant evidence for the belief that Americans have sufficient knowledge of rights to make them meaningful or that pronouncements of rights have persuasive power or imbue issues with heightened moral legitimacy.

While many see the 1960s as the era of a “rights revolution” in American law, this article looks back from the present moment of conservative legal dominance to better understand the ways in which conservative ideas began to grow during the heyday of legal liberalism. Using recent histories of post-1945 grassroots conservatism, the author argues that conservative rights claims – while often legally questionable – constituted for many a powerful and persuasive understanding of the Constitution. Due to this popular conservative jurisprudence's endurance and influence, its existence in the 1960s forces reconsideration of understandings of the 1960s as the era of the “rights revolution.”

The empirical literature that attempts to study rights is at an impasse. It can demonstrate that big claims about how some rights structure politics are overblown, but it has struggled to go beyond this step. This is in large part because studying rights is much more difficult than is commonly appreciated. A study of rights promises implicitly to be a study of how rights politics differs from other kinds of politics. But rights are so ubiquitous and so diverse in form that it is often unclear what the excluded other is. We examine three books on rights that we admire: two by political scientists, Gerald Rosenberg's The Hollow Hope and Michael McCann's Rights at Work, and one by an anthropologist, Sally Merry's Human Rights and Gender Violence. These books conceptualize rights in diverse ways, in diverse settings, using diverse methodologies; yet they run up against similar difficulties in trying to think beyond the cases they study. At the conclusion, we make some humble suggestions for how researchers might try to overcome these problems.

Torture has been practiced for millennia, albeit the means, rationales, and objectives have changed. (For an extended discussion of torture's past, see Hajjar, 2009.) Starting in the 12th century, the rediscovery of Roman law in western Europe revived torture as an aspect of criminal legal processes, both ecclesiastical and secular. According to Edward Peters (1996, p. 41), “the inquisitorial procedure displaced the older accusatorial procedure. Instead of the confirmed and verified freeman's oath, confession was elevated to the top of the hierarchy of proofs…[T]he place of confession in legal procedure…explains the reappearance of torture in medieval and early modern law.”

Doctors need to consider all kinds of traits and risk factors about a person in a treatment situation, while antidiscrimination law puts significant restrictions on what an employer can consider about a person in hiring. These two contexts – health care and the antidiscrimination-governed workplace – seem to adopt entirely incompatible conceptions of how to regard the person, and hence, what rights she is considered to deserve. Therefore, how can we make sense of the claim by fat acceptance advocates that doctors discriminate against them based on their weight? Even when little or no formal rights exist for fat citizens in either sphere, there are nonetheless transformative discourses available that cross-pollinate each context. Revisiting rights by bringing these two discordant contexts together helps illuminate problems of injustice that must be confronted in the future as we move toward a more universal and equitable health care system in which conceptions of rights must have some place.

This is an essay that will be misinterpreted. Before I even mention genocidal rights, I want to make clear what my argument is not. First, my argument is not that genocide has not happened or does not continue to happen. Second, I will not suggest that genocide is not a serious crime. Finally, I will not try to develop a theory of victimhood – to challenge the centrality of the victim in discussions of genocide. Rather, my interest here will be the uncomfortably intimate relationship between genocidal violence on the one hand and the elaboration of civil, sovereign, and human rights on the other.