The Politics of Rights, 2nd Edition: Lawyers, Public Policy, and Political Change.

Vol. 14 No.10 (October 2004), pp.788-793

THE POLITICS OF RIGHTS, 2ND EDITION: LAWYERS, PUBLIC POLICY, AND POLITICAL CHANGE, by Stuart Scheingold (Foreword by Malcolm Feeley). Ann Arbor: University of Michigan Press, 2004. 280pp. Cloth $22.95. ISBN: 0-472-03005-1

Reviewed by Jeffrey R. Dudas, Department of Political Science, University of Connecticut. Email: jeffrey.dudas@uconn.edu

30 years after its initial publication, Stuart Scheingold’s THE POLITICS OF RIGHTS remains, according to Malcolm Feeley, “the single best book on law and politics in the United States.” “It is the source,” writes Feeley, a touchstone to which the “serious student must always and repeatedly return” (Feeley 2004, xv-xvi). Happily, the new, second edition of THE POLITICS OF RIGHTS facilitates such return trips, even as it adds a new preface that is itself an important addition to the scholarship that the first edition inspired. I will, first, detail Scheingold’s original argument (which remains unaltered in the new edition) and, second, discuss the contributions of Scheingold’s new preface.

Synopsis of Original Argument

Scheingold’s argument is by now familiar. The distinctive, enduring faith that most Americans place in constitutional government – in a politics orchestrated according to a rule of law – is, or should be, he argues, the foundational point for making sense of the contours of the American political community. To be clear, it is not the concrete institution of constitutional government, but widespread belief in the appropriateness, the goodness of constitutional government that merits attention. For this belief underlies the “symbolic life” of American law, and it expresses a set of values that “condition perceptions, establish role expectations, provide standards of legitimacy, and account for the institutional patterns of American politics” (p.il). Scheingold thus argues that, in its symbolic form, law is a principal, animating element of American national identity and, thereby, of American politics itself.

Scheingold argues that this symbolic life of law surfaces, at least in part, as a “myth of rights.” The myth of rights refers to the widespread assumption that 1) “litigation can evoke a declaration of rights from courts,” 2) “that it can, further, be used to assure the realization of these rights,” and 3) “that realization is tantamount to meaningful change” (p.5). In this way, the myth of rights expresses an elemental faith in the promises of constitutional government, a “faith in the political efficacy and ethical sufficiency of law as a principle of government” (p.17). Arguing that most Americans are responsive to the “call” of law, Scheingold thus suggests that the myth of rights makes-up American life in distinctive and enduring ways (pp.62-79).

Although it is consistent with such mainstream American values as limited government, the sanctity of private property, individualism, and a market [*789] economy, the myth of rights provides only a partially accurate description of American law and politics. For as Scheingold argues, each of the three components of the myth enable significant conceptual and empirical difficulties. The first two components – which together emphasize that courts are effective at declaring, and remedying violations of rights – ignore a variety of relevant factors. There are, first, accessibility issues. On one hand, potential litigants often lack the material resources to bring their grievances before a judge, or to maintain a legal action through multiple continuances and appeals. Very few Americans, that is, possess the capacity to become the sort of “repeat players” in court that the recognition of a right often requires (Galanter 1974). On the other hand, even when accessibility is not an overriding concern, judges are often reticent to declare new forms of rights both because of a professional sensitivity to the value of adhering to precedent and a practical sensitivity to the potential ramifications of governing as a counter-majoritarian institution (pp.97-116).

The potential consequences of acting out of step with majoritarian institutions also complicate the second component of the myth of rights – the notion that courts are able to effectively remedy violations of rights. Here Scheingold relies upon the earliest impact studies, especially Wirt (1970) and Dolbeare and Hammond (1971), to highlight the gap between court declarations of rights and actual political practice. These studies, as Scheingold suggests and as Rosenberg (1991) later developed more fully, establish the inability of courts to affect public policy directly or bring about social change. Lacking enforcement authority, courts always rely upon the good faith of those who “receive” their opinions (Canon and Johnson 1998), upon the willingness of occasionally recalcitrant audiences to translate their legal pronouncements into public policy. By so complicating the first two components of the myth of rights, Scheingold concludes that litigation is at best a provisional, contingent resource for realizing a rights-based polity (pp.117-130).

The supposition that the “realization of rights is tantamount to meaningful (social) change” – the third component of the myth of rights – is more problematic still. Relying upon the fantastic assumption that the recognition of rights purges political relationships of conflict and thus permanently settles highly-charged disputes, the myth of rights celebrates a social order of surface calm, one that blankets and insulates a whole realm of “private” spheres from contest. The myth of rights in this way presupposes a strict separation between the public and the private; it thus voices the distinctively liberal dream (or nightmare) of a polity that assumes (or presumes) a whole host of social relations that are themselves insulated from the reach of government. Particularly revealing in this regard is consideration of the ingrained forms of inequality prompted by capitalist, white supremacist, and patriarchal regimes. The logic of rights has only occasionally been brought to bear in attacks on these hierarchies, and has often been a greater force for legitimizing them than for challenging them. The myth of rights, writes Scheingold, thus “stands as an obstacle to the assumption of new governmental responsibilities in economic and social matters . . . [and] in [*790] matters having to do with racial justice” (pp.99-100). Accordingly, constitutional government, and the myth of rights that animates it, has “its own built-in boundaries” such that even a polity based upon a robust practice of rights would likely remain highly stratified (p.100).

But the myth of rights is not just about the distortion of reality, the displacement of political struggle, and the naturalization of inequality. Instead, widespread belief in its components enables a whole range of political activities. Because the myth works ideologically, Scheingold notes that “it is possible to capitalize on the perceptions of entitlement associated with rights to initiate and to nurture political mobilization” (p.131). The myth of rights thus makes possible a politics of rights; the mobilization of rights – because of their mythic, culturally-salient character – is thus a potentially useful resource for social movements that pursue social change.

Scheingold argues that the myth of rights facilitates a politics of rights in three ways. A rights-claim may, first, ACTIVATE political consciousness, encouraging people to perceive their needs and wants as entitlements precisely because they now experience deprivation as an injury to their rights. Or, better said, a belief in rights can help groups to visualize and focus grievances and perceptions of unfairness that might remain otherwise inchoate. Second, a rights-claim may be useful for POLITICAL ORGANIZATION. Specifically, a politics of rights can contribute to social movements insofar as a vindication of rights in court is likely to generate publicity while simultaneously making movement goals intelligible to a wide audience, at least part of which will presumably be sympathetic to those goals. And, third, Scheingold argues that the cumulative impacts of 1) internal activation and 2) external intelligibility can spur an eventual REALIGNMENT of resources and values at the concrete level of public policy. He points to the rights-based strategies of the Civil Rights Movement, and the resistance that it prompted (which itself arguably shook the federal government out of its complacency), as an example of the ways that a politics of rights can contribute to meaningful social change (pp.131-148). Scheingold relies upon Murray Edelman’s (1964) distinction between symbolic and concrete politics to ground the point, arguing that the symbolic character of rights facilitates concrete forms of political activity; or, rights have concrete political effect precisely because of their symbolic allure (pp.205-209).

Finally, Scheingold argues that, in spite of the potential contributions on behalf of social change that rights mobilizations can make, lawyers are unlikely to be adept “strategists” of the politics of rights. Noting that their socialization as lawyers makes them especially responsive to law’s promises, Scheingold argues that even the most committed activist lawyers typically lack the critical distance necessary to fully grasp the vicissitudes of a rights-based strategy. Activist lawyers are thus led, he concludes, to favor litigation (and the at best halting social progress that it produces) over more promising forms of social movement activity. Unable to re-imagine rights as a means towards social liberation rather than the end of social liberation itself, Scheingold cautions that [*791] lawyers are likely to prove to be of ambiguous worth as social movement strategists (pp.151-199).

New Preface

In addition to the unaltered original manuscript, the 2nd edition of THE POLITICS OF RIGHTS features an illuminating new Preface in which Scheingold engages the rights-scholarship that has appeared since the publication of THE POLITICS OF RIGHTS in 1974. Specifically, Scheingold argues that this scholarship amounts to a “NEW POLITICS OF RIGHTS” that at once confirms, qualifies, and (occasionally) rejects his original findings. This argument, which proceeds with characteristic generosity and introspection, means that Scheingold’s new preface is not simply a reflection on the impact of THE POLITICS OF RIGHTS. It is, instead, a coherent, concise, and badly-needed critical synthesis of a now sprawling body of rights-scholarship.

Scheingold begins by arguing that the most consequential of this scholarship employs a “constitutive” approach to researching law and rights. Further, he correctly notes that this approach – which emphasizes how, in John Brigham’s formulation, “social action depends upon law” (Brigham 1988, 304) – is consistent with his own account of how the myth of rights provides Americans with a conceptual and cognitive resource that informs behavior. Indeed, the new politics of rights that emerges from such constitutive analyses confirms the general perceptive of the “old politics of rights” in important ways. It shows, first, that rights-based strategies are not directly empowering and, second, that, nevertheless, the mobilization of rights can contribute to a larger strategy of political mobilization. Scheingold notes that one strain of recent rights-scholarship in particular – that which deals with the counter-mobilization of rights; or the mobilization of rights on behalf of inegalitarian goals – has extended the analytical reach of his original perspective. Similarly, Scheingold correctly argues that the scholarship on what he calls “collective legal mobilization” reaches conclusions that support his own original, more speculative formulations.

But, always generous, Scheingold argues that the scholarship that THE POLITICS OF RIGHTS inspired is not simply derivative. Instead, he holds that scholars have clarified, and occasionally reworked, his original formulation such that THE POLITICS OF RIGHTS has had “a deeper and longer life than I would have ever imagined possible” (p.xlii). Scheingold is, for example, particularly impressed by the findings of scholars who explore rights consciousness specifically, and legal consciousness generally. As he notes, they have complicated his assertions of the singularly suasive character of rights in American society, instead showing how the appeal of rights is heightened and/or softened depending upon the social and cultural contexts in which people are enmeshed (see e.g., Greenhouse, Yngvesson and Engel 1994; Ewick and Silbey 1998; Gilliom 2001; Engel and Munger 2003). Similarly, the work on collective legal mobilization (e.g., McCann 1994; Silverstein 1996) has established that social movements are more or less well positioned to engage in a politics of rights [*792] given the opportunity structures open to a given movement and the cultural orientations of their members. Finally, Scheingold details how the scholarship on “cause lawyers” (which he has been instrumental in bringing to a wide audience – Sarat and Scheingold 1998; 2001; Scheingold and Sarat 2004; see also Hilbink 2004) has produced a substantial revision of his initially pessimistic assessment of the capacity of lawyers to be effective practitioners of a politics of rights (pp.xxxvii-xli).

Scheingold’s new Preface thus offers a compelling synthesis of contemporary rights-scholarship, one that is not infrequently critical of the arguments of the original text. The open, probing presentation of the new Preface simultaneously links it to Scheingold’s original text and makes that Preface itself required reading. Laid side-by-side, in fact, the new and the old constitute a definitive POLITICS OF RIGHTS.

REFERENCES:

Brigham, John. 1988. “Right, Rage, and Remedy: Forms of Law in Political Discourse,” 2 STUDIES IN AMERICAN POLITICAL DEVELOPMENT 303.

Canon, Bradley C., and Charles A. Johnson. 1998. JUDICIAL POLICIES: IMPLEMENTATION AND IMPACT, 2ND EDITION. Washington, D.C.: Congressional Quarterly Press.

Dolbeare, Kenneth and Phillip E. Hammond. 1971. THE SCHOOL PRAYER DECISIONS: FROM COURT POLICY TO LOCAL PRACTICE. Chicago, Illinois: University of Chicago Press.

Edelman, Murray. 1964. THE SYMBOLIC USES OF POLITICS. Urbana, Illinois: University of Illinois Press.

Engel, David M., and Frank W. Munger. 2003. RIGHTS OF INCLUSION: LAW AND IDENTITY IN THE LIFE STORIES OF AMERICANS WITH DISABILITIES. Chicago, Illinois: University of Chicago Press.

Ewick, Patricia, and Susan Silbey. 1998. THE COMMON PLACE OF LAW: STORIES FROM EVERYDAY LIFE. Chicago, Illinois: University of Chicago Press.

Feeley, Malcolm. 2004. “Foreword,” in Stuart A. Scheingold, THE POLITICS OF RIGHTS, 2ND EDITION: LAWYERS, PUBLIC POLICY, AND POLITICAL CHANGE. xi-xvi. Ann Arbor, Michigan: University of Michigan Press.

Galanter, Marc. 1974. “Why the ‘Haves’ Come Out Ahead: Speculations on the Limits of Legal Change,” 9 LAW AND SOCIETY REVIEW 95.

Gilliom, John. 2001. OVERSEERS OF THE POOR: SURVEILLANCE, RESISTANCE, AND THE LIMITS OF PRIVACY. Chicago, Illinois: University of Chicago Press.

Greenhouse, Carol J., Barbara Yngvesson, and David M. Engel. 1994. [*793] LAW AND COMMUNITY IN THREE AMERICAN TOWNS. Ithaca, New York: Cornell University Press.

Hilbink, Thomas M. 2004. “You Know the Type . . . : Categories of Cause Lawyering,” 29 LAW AND SOCIAL INQUIRY 657.

McCann, Michael W. 1994. RIGHTS AT WORK: PAY EQUITY REFORM AND THE POLITICS OF LEGAL MOBILIZATION. Chicago, Illinois: University of Chicago Press.

Rosenberg, Gerald. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? Chicago, Illinois: University of Chicago Press.

Sarat, Austin, and Stuart A. Scheingold (eds.). 1998. CAUSE LAWYERING: POLITICAL COMMITMENTS AND PROFESSIONAL RESPONSIBILITIES. New York, New York: Oxford University Press.

Sarat, Austin, and Stuart A. Scheingold (eds.). 2001. CAUSE LAWYERING AND THE STATE IN A GLOBAL ERA. New York, New York: Oxford University Press.

Scheingold, Stuart A., and Austin Sarat. 2004. SOMETHING TO BELIEVE IN: POLITICS, PROFESSIONALISM, AND CAUSE LAWYERING. Stanford, California: Stanford University Press.

Silverstein, Helena. 1996. UNLEASHING RIGHTS: LAW, MEANING, AND THE ANIMAL RIGHTS MOVEMENT. Ann Arbor, Michigan: University of Michigan Press.

Wirt, Frederick M. 1970. THE POLITICS OF SOUTHERN EQUALITY: LAW AND SOCIAL CHANGE IN A MISSISSIPPI COUNTY. Chicago, Illinois: Aldine.