LEGAL RIGHTS: HISTORICAL AND PHILOSOPHICAL PERSPECTIVES by Austin Sarat and Thomas R. Kearns (editors). Ann Arbor: The University of Michigan Press, 1996. Cloth, $44.95. 

Reviewed by John Blakeman, Department of Political Science, Baylor University.
 

Austin Sarat and Thomas Kearns, with the publication of LEGAL RIGHTS: HISTORICAL AND PHILOSOPHICAL PERSPECTIVES, add another volume to the Amherst Series in Law, Jurisprudence, and Social Thought. The series is published by the University of Michigan Press. I am unfamiliar with other works in the series, but as a public law scholar who began graduate work in the early 1990s, I recognize Sarat’s and Kearns’ scholarship as a search, in part, for new approaches to familiar questions of public law, jurisprudence, and political science. Therefore, I approached this edited collection with a view to learning new, or at least different, perspectives on legal rights.

The Amherst series, according to the book dustjacket, explores themes "crucial to an understanding of law as it confronts the changing social and intellectual currents of the late twentieth century." Laudable goals, to be sure, and the series is certainly providing current analysis and reflections on the nature of law and legal theory. LEGAL RIGHTS fits into the overall theme of the series well, and indeed the essays contribute to a different understanding of law and legal rights than that normally found in law and political science journals.

The first essay in the collection starts the historical dialogue about rights off with a bang. Professor Annabel Patterson discusses the treason trials of Nicolas Throckmorton in the late 17th century, and John Lilburne in the 18th century. One of Professor Patterson’s goals is simply to "reinflect contemporary rights theory in the United States with the politicolegal history of early modern England." As she points out, "what are sometimes referred to as natural or inalienable rights took a very long time to claim, and even longer to instantiate." (20) She focuses on Throckmorton and Lilburne because basically they were successful in outwitting the English judicial system; both convinced juries to acquit them of treason after facing almost insurmountable legal, judicial, and political obstacles. Evidently most others accused of treason were not so lucky. According to Patterson, the "successful instantiation [of inalienable rights] in the United States depended upon, in the causal sense, their having been claimed, and claimed unsuccessfully (her emphasis), in England, where for at least three centuries before the American Bill of Rights was articulated, the evidence of what new rights were necessary was painfully established by those who ... were not agile enough to outwit the system."(20) Therefore, we should study the Throckmorton and Lilburne trials in detail, not only because they outwitted the system, but also because their experiences teach us how people articulate and even force the recognition of new rights.

Morton Horwitz’s short essay on the natural law and natural rights tradition in the United States continues the historical focus on legal rights. I found in his essay a very compelling argument that the natural law/rights tradition in the United States is very much contextual. Horwitz’s argument is not fully developed, but given the space limitations that is understandable. Perhaps he will expand it into a book. Horwitz’s argument in brief is that issues of higher law in the United States since 1789 have generally been marginal, and debate over natural law suffers from a lack of clarity. He asserts that "only through disaggregation and contextualization ... can we see the vastly different political and historical circumstances that have given rise to questions about natural law." (46) As he demonstrates from the Declaration of Independence, through the Lochner era Supreme Court, and the Warren Court, debate over natural law has been contextual: "how natural law and natural rights have entered into legal discourse has varied widely depending on the particular context of the problems that the discourse was called upon to address." (50) Horwitz’s simple enough point, that natural law/rights language is employed in different contexts in order to address a specific discourse--or legal dispute--is worthy of significant expansion.

Other essays in the book are similarly provocative. Jeremy Waldron explores the relation between rights and needs, and argues that we easily slide from the language of rights to the language of need or necessity. As Waldron puts it, "rights talk and needs talk may both embody a form of respect; but only the language of rights conjoins in its very structure the idea of respect for persons and self-respect. Both rights and needs amount to a demand that certain interests be attended to; but only rights talk presents those interests in the voice of one who would be a full-fledged member of society."(104) For Waldron, rights claims are made in the voice of the bearer and are "associated with assertions of self-interest." Needs-based claims are not often linked to a specific bearer. Rights claims, moreover, also imply reciprocal duties or obligations; needs-based claims do not. Rights claims can give needs claims a coherence and dignity, but not vice versa.

I found Waldron’s argument especially interesting, since talk of welfare reform, and the needs of certain individuals in society, is prominent in our current political discourse. Moreover, Waldron’s argument also enlightens one manifest trend in public law litigation in the United States, specifically the use of the courts by liberal interest groups to establish a right, or rights, to welfare benefits. The campaign to litigate welfare and needs-based claims in the judicial process has had mixed results, not least because of the myriad of groups involved. Waldron points out a more philosophical argument as to why litigating such claims may not work.

Michael Perry’s essay "Is the Idea of Human Rights Ineliminably Religious?" is likewise provocative, and an intriguing discussion of why human dignity, so pronounced in international human rights, must have some kind of sacred foundation. Perry argues that "one need not count oneself religious in order to wonder whether much secular moral-philosophizing hasn’t been, for a very long time now, a kind of whistling in the dark."(261) Indeed, Perry’s argument seems to contradict strongly the kind theoretical analysis of law and legal rights by such scholars as H.L.A. Hart, Ronald Dworkin, and Lon Fuller, and Perry argues that perhaps a more sacred foundation for human rights is desirable and possible. Perry’s chapter poses an interesting contrast to Waldron’s essay.

One final essay I want to mention is Hadley Arkes’ "The New Jural Mind: Rights without Grounds, without Truths, and without Things That are Truly Rightful." Arkes continues to build upon his earlier arguments that we should interpret the Constitution and the Bill of Rights based on principles that exist "beyond the Constitution." With "The New Jural Mind," Arkes points specifically to the issue of abortion. He exposes a contradiction, or paradox, in the thinking of lawyers and legal scholars who were more than willing to expand the civil rights of African-Americans, yet recoiled at the thought of expanding the civil rights of the unborn. Arkes points to President Abraham Lincoln’s famous private note to himself demonstrating that conceptions of superiority based on a person’s color or intellect easily break down, thereby destroying much of the philosophical justifications for slavery made by slave-owners in the nineteenth century. For Arkes, "we may ask why the same kind of reasoning would not be applied quite as aptly to the question of why the unborn child should be regarded as anything less than a human being, a bearer of rights, with a claim to the protections of the law." Arkes is presenting a well-constructed argument against abortion that is not based on "revelation or religious belief, or to any of those irreducible opinions that could compose a ‘value judgement.’" (202). I cannot do justice to Arkes’ argument here, but I did find it very interesting. He is calling for the return of a certain type of reasoning into our legal and judicial culture, a reasoning based on first principles that serve as a guide to the abstractions in our Constitution. This type of reasoning has been lost because lawyers, judges, (our whole legal culture?) is now imbued with legal positivism that presents barriers to reasoning from first principles; "there may be something about a deep seasoning in the law that renders lawyers especially vulnerable to this state of mind."(177) This state of mind, for Arkes, allows us "to block from our view a whole class of beings that we do not exactly recognize as beings with any special claim to our concern or as beings who are bearers of rights." Arkes seems to be arguing for a fundamental shift in how we reason about our legal rights. Of course, he may be correct about the generally positivistic definition of rights, especially in the area of abortion, and indeed he has touched upon larger issues of legal culture that affect how lawyers and judges reason about the law and rights. Jurisprudence often ignores or avoids questions of legal and judicial culture, and Arkes rightly brings these issues to the forefront in the ongoing debate about abortion and legal rights.

In all, I found the Sarat and Kearns’ collection to be readable and thought-provoking. I am unable to cover every essay in the book, but all of the works merit some attention. The book lives up to the claims of the Amherst series, as it "confronts the changing social and intellectual currents of the late twentieth century." It offers different perspectives on legal rights, and adds another layer to our ongoing debate over the content and foundation for our legal rights. The book seems suited best for an upper-level undergraduate seminar or graduate seminar on jurisprudence, law and society, or possibly constitutional theory. I would have a hard time fitting it into a typical semester-long course on civil rights and civil liberties, but can easily think of other teaching uses for it. The book also, I think, poses a good contrast to earlier (and current) jurisprudential scholarship--and here I have in mind Hart, Dworkin, Posner, and even Fuller. The editors’ focus on historical and philosophical perspectives does offer a different approach to legal rights that is not normally found in mainstream jurisprudential scholarship.