Vol. 10 No. 4 (April 2000) pp. 245-250.

RIGHTS AND RESPONSIBILITIES by Leon Trakman and Sean Gatien. Toronto: University of Toronto Press. 1999. 286pp.

Reviewed by Ira L. Strauber. Department of Political Science, Grinnell College.

 

RIGHTS AND RESPONSIBILITIES is a contribution to the philosophically driven literature that seeks to push rights beyond their conventional liberal foundations and their supposedly exhausted implications for the common good. As Canadian scholar Leon Trakman and associate Sean Gatien see it, the major legal defect in liberal rights (a defect as well in liberal conceptions of duties and associated powers of the state) is that they fail to address, and to adequately protect, individual and community interests that are otherwise a priori eclipsed by a exclusive concerns with autonomy. The presumed culprits for this failure are those notorious core dichotomies of liberalism that philosophically minded critics of liberalism have found to be so troublesome -- namely the right over the good, the self and other, and the individual and state. The authors do not deny that these dichotomies do yeoman service when it comes to justifying fundamental interests related to autonomy. However, the authors blame these dichotomies for standing in the way of achieving a broader understanding of interests and values. That broader understanding would better encompass what is necessary to balance competing social and political values in a pluralistic society.

Accordingly, the authors take seriously and find praiseworthy communitarian criticisms of liberal philosophy and rights that seek to address communal interests and a strong sense of a civic responsibility toward others. But the authors find even communitarian criticisms of liberalism inadequate for their task. That is because they read communitarian criticisms as having failed to connect tightly enough liberal rights to responsibilities, and because they find communitarianism linked to "ahistorical" accounts of community or to conservative, even totalitarian, conceptions of a polity. So, the major task of Trakman and Gatien's philosophical and legal arguments is to articulate a feasible philosophical and legal methodology to remedy the defects of liberalism and the shortcomings of communitarianism. They claim to do this by providing a methodology for balancing rights with responsibilities in such a way that it is consistent with a historically sound and progressive account of a pluralistic community. (Some readers will be reminded of similarities between this task and the tasks of some feminists, but the authors give no evidence of being engaged by those similarities.)

The political philosophical warrant for this methodology is "a conception of shared liberty" (p. 278). Shared liberty manifests itself when legal rights, duties, and powers are balanced with considerations about RESPONSIBILITIES to citizens whose interests are occluded by conventional liberal rights-talk, or who are

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vulnerable or who are newly emerging in a polity (e.g., victims of hate speech, Native peoples, global environmental interests). This methodology requires taking into account contextual considerations: i.e., social fact considerations along with the "plurality of potentially conflicting values that underlie life, liberty, cultural tradition, and social experience beyond the limited plurality of liberalism" (p. 44). The authors' legal methodology is derived primarily from the authors' philosophical modification of Wesley Hohfeld's analysis of the correlatives and contradictions of core liberal-legal relations. Like Hohfeld's original analysis, the authors' modification is designed to transform rights-talk from its putative "all-or-nothing" valence to something that takes into account the adaptability of that valence (and therefore THE EXTENT TO which there are no fixed or absolute rights).  

Also like Hohfeld's original analysis, RIGHTS AND RESPONSIBILITIES depends upon a very precise terminology for portraying legal relations. Indeed, the arguments based on those relations are sufficiently complicated that the authors sometimes find it expedient to illustrate their textual arguments with tables of legal categories. Scholars and graduate students who are interested in the philosophical and legal issues involved here will have the patience to work through the tables and the arguments. As for advanced undergraduate readers, the authors do well by them by repeating the logic of their Hohfeld-based methodology, which they introduce in the second chapter, at appropriate points in the case studies of the book. However, perhaps it is appropriate for undergraduate instructors to consider whether the precise terminology and the arguments that follow from them may try the patience of some of their undergraduate readers.  

By way of a rough summary then, what these arguments come to is that "Rights that are not subject to external limits arising from the rights of others or from state action are subject to internal limits of responsibilities inhering in those rights. These responsibilities are generated when interests are harmed by the exercise of conventional rights and which otherwise are insufficiently protected in law" (p. 63). To go beyond what are categorized as "external constraints"-rights subject to countervailing rights or powers of the state -- is to manifest a concern with responsibilities that right-holders have not to harm the interests of those affected by the otherwise legitimate actions of rights-holders. Responsibilities so conceived would be categorized as "internal constraints" on rights in accord with shared liberty. However, the authors warn that internal constraints on rights do not guarantee that occluded interests and conceptions of responsibilities will necessarily receive greater weight or win every legal battle. Rather, the legal methodology of shared liberty and contextual considerations is designed to reconceptualize rights so that adjudicators and legislators who would follow this methodology, in some fashion, and would be evaluated by it, would be bound to (at least) give those occluded interests and responsibilities a fair hearing.

For the authors, a legal methodology of fairness in rights adjudication and legislation requires scholars to reject the philosophical debate over the priority of the right over the good. In its place, the authors' philosophical premise is that once a conflict between rights and occluded interests arises in adjudication or legislation, the fact that there is a plurality of interests and values involved requires a conceptual framework wherein no fixed priorities ought to be

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attributed to the right or the good. The implication of this premise for any legal analysis of responsibilities is a somewhat complicated procedural schema that manages thinking about competing values and interests. The following gives a flavor of this schema: "The analysis of responsibilities begins in the same way as the liberal analysis of rights, by determining whether interests pass a particular threshold that engages a prima facie right, or whether the interest is unrecognized by law. If the right-holder's claim does not meet this threshold, then it fails as a prima facie claim, power, privilege, or immunity. The analysis terminates and responsibilities never arise for consideration. If the right is prima facie engaged, countervailing considerations are considered. These include considering external limits placed upon the exercise of rights arising in private law, by statute, or by public policy. If these external considerations override the primae face right in question, then analysis also terminates. If the prima face right is not overridden by external limits, but is shown to have a sufficiently probably and proximate impact that is detrimental to sufficiently important interests, then an internal limit or responsibility is imposed."(p. 65)  

The analysis then proceeds to determinations about whether right-holders' interests might be overriding, or might need to be qualified by competing interests, or might `be overridden by responsibilities. I can make no effort in the space allotted me to do justice to this schema of determinations. Suffice it to say that taken as a whole, these determinations are designed to function as the law of equity does in redressing the failures of the common law (p. 14).

 

As for construction of the book proper, the first two chapters are theoretical ones. Chapter One addresses what the authors believe to be the core philosophical issue for transforming liberal rights: the controversy over the relationship between the right and the good in liberal theory, framed around John Rawls' and Michael Sandel's accounts. The philosophical work of contemporary philosophers John Kekes and Will Kymlicka feeds the authors' philosophical claims as the authors weave their way in and out of the Rawls-Sandel accounts. At bottom, the authors defend the position (closer to, but still at odds with, Sandel) that, if the goal of liberalism is the preservation of conflicting and often competing interests in a pluralistic society, then philosophizing about rights will be more productive if it moves beyond the dichotomy of the right and the good. This move, they say, requires balancing the right, the good, and those conceptions of responsibilities that arise when the exercise of legal rights brings about harms to other interests that are unprotected by other rights or the power of the state.

 The authors acknowledge the inexactness of any process of balancing the right, the good, and responsibilities, not in the least because there is no formulaic process for such balancing. Indeed, this process of balancing is deemed by them to be as much a matter of "the art of life, politics, and law" (p. 50) as it is a matter of legal methodology. Hence the authors also acknowledge that balancing raises the threat of relativistic resolutions of conflicts between values, especially granted "the shifting values of social life" (p. 42) that are historically associated with a pluralistic polity.

Nevertheless, the authors assure their

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readers that this threat is brought under control by their legal methodology. (A little more of this at the close of this review.) Chapter Two presents a detailed theoretical characterization of the author's legal methodology that I discussed earlier. I think it will be interesting for scholars who are engaged by the philosophical issues of this characterization to tackle two questions: 1) Does the methodology succeed in reconciling a Lockean conception of rights with a conception of communal values and "bonds that unite us in relation with others" (p. 76 and p. 2) If the methodology does succeed, do the authors or communitarian critics of liberalism have a more persuasive argument when it comes to the question of whether liberal rights can be transformed and reconciled with "genuine" concerns about community? The remaining chapters are case studies that illustrate how rights can be transformed and reconciled with community. The chapters address a number of "hot button" issues, and, when appropriate, the authors show how their legal methodology fits with examples of legal decisions that manifest some facets of their desired conception of rights and responsibilities. Specifically, Chapter Three addresses freedom of speech interests and responsibilities toward others. The chapter begins with a portrayal of a version of the liberal roots of free speech in philosophical terms and in terms of U. S. constitutional law (with some references to Canadian law). It then discusses the strengths and weaknesses of these roots from a communitarian perspective, and then criticizes the latter from the perspective of the authors' philosophical positions and legal methodology. The chapter concludes with a discussion of the philosophical and legal roots of the authors' version of "responsible speech" that in turn provides the material for considering a range of reasons why, and to what extent, hate-speech codes might be justifiable.

Chapter Four addresses the issue of reproductive freedom, again primarily in regard to U. S. law but with some references to Canadian law. Basically this chapter defends the central tenets of ROE v. WADE, but it asserts that ROE'S FOCUS on external constraints on rights does not provide an adequate understanding of important pro-life and pro-choice social interests related to controversies over reproductive technologies, bodily security, and the rights of minors. The authors contend that if ROE rights are tied to responsibilities then there are principled ways to explore potential resolutions of the competing values associated with those controversies. These potential principled resolutions are offered as intentionally at odds with the extreme positions in those controversies, and therein said by the authors to be praiseworthy to the extent that they have a better fit with the conflicting social, cultural, religious values at stake.

 The last two case studies are for me the richer parts of the book. Chapter Five is a comparative discussion of Native culture-based rights in the U. S. and Canada, primarily in relation to land use. After tracing liberal conceptions of Native culture-rights in the U. S. and Canada, the authors indicate their decided preference for recent decisions by the Supreme Court of Canada that move, however tentatively, beyond those conceptions. The chapter argues for a more aggressive move beyond those conceptions via state recognition of the cultural interests of Native peoples in terms of responsibilities to cultural "others." This chapter revisits in greater detail than the other case studies the modified Hofeldian

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categories. This detail helps frame the authors' challenging task of assessing what relative weight courts and legislatures should give to occluded interests of Native peoples (e.g., the right to fish in specified waters) in relation to the interests of non- Native peoples as well as state power to regulate the environment. I venture to say that these assessments are complicated because the chapter strives to suggest innovative ways to consider how competing interests might be analyzed to maximize economic, social, and political self-determination within the context of shared responsibilities to protect the environment. The chapter's concluding remarks refer to practicality of the authors' assessments in light of recent Canadian policies about Native culture rights.

Chapter Six concludes this book. It is a discussion of international environmental law, most pointedly the problem of balancing state sovereignty with the assumed global good of a coherent strategy for protecting the environment. The authors base their legal strategy on two multinational environmental agreements: the Stockholm and Rio declarations. It contrasts these agreements with a liberal conception of international law, and then it indicates the role of the Hohfeldian-based adaptations in balancing occluded interests and responsibilities alongside conventional considerations such as fairness in commercial transactions, the need to combat poverty, and the virtue of stimulating economic development. For the authors, what is most important in this balance is recognition of a role for national power balanced with a conception of sovereignty based on the idea of a mutually dependent international community.

This last chapter on international law befits the book as a whole in the sense that the authors depend on a comparative context, heretofore mentioned

only in passing, for their case studies. The recent flurry over Lee Epstein's article in LAW AND COURTS about "the advantage" of such contexts, and her claim about the relative neglect that such theoretical contexts have received, suggests that RIGHTS AND RESPONSIBILITIES might be read as an example of a "less neglectful" turn in jurisprudential studies. From my legal realistic and pragmatic perspective, I think it is worthwhile to consider the extent to which this turn, and its call for balancing rights with responsibilities, depends upon ideological commitments that may have a better fit with Canadian in contrast to US legal and political cultural values. I should say though that I know next to nothing about Canadian legal and political culture. But I am confident in suggesting that the authors' philosophical and legal commitments to a progressive account of a pluralistic community, as well as a reconciliation of Lockean rights with communal values and "bonds that unite US in relation with others," strike me as strongly reminiscent of the democratic socialists' ideological goal of constructing "indissoluble" bonds between the individual and a collective identity. To the extent that is true, their goals, even understood as aspirations, seem to me to be at odds with the efficaciousness of U. S. legal reasoning, and with U. S. elite and popular political culture.

At a more theoretical level, as I read this book I found myself thinking about the authors' aspirations in relation to J. S. Mills' goals for utilitarianism, especially the latter's treatment of the internal logic of justice in terms of rights, impartiality, equality, and expediency. Also, at an historical level, I found it hard to shake thinking about connections between Hohfeld's work and the jurisprudence of Oliver Wendell Holmes. I

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offer these two thoughts because they raise potentially interesting questions about the extent to which the authors' legal methodology, to say nothing of any legal methodology, can actually cabin that threat of relativism that the authors' themselves acknowledge to be a threat. (I take the liberty of saying that I think that this putative threat of relativism is not all that it is cranked up to be.)   Next to last, readers might find it worthwhile to compare and contrast this book's extensive philosophical arguments for an ambitious legal methodology to expand rights adjudication (in contrast to legislation) and the recent (somewhat less philosophically extensive) arguments about the reality and the virtues of a far more diminished role for adjudication advocated and explained most recently by Cass Sunstein (1999) and Mark Tushnet (1999). Lastly, all told, for those of US with the patience to work through its Hohfeld-like logic, RIGHTS AND RESPONSIBILITIES provides an intellectually challenging opportunity to think hard about the strengths and weaknesses of principled reasons for legal aspirations that extend beyond the choice between liberal and communitarian values.

REFERENCES:

Horowitz, Morton J. 1992. THE TRANSFORMATION OF AMERICAN LAW. New York:

Oxford University Press.

Kennedy, Duncan. 1997. A CRITIQUE OF ADJUDICATION. Cambridge, MA: Harvard

University Press.

Sunstein, Cass. 1999. ONE CASE AT A TIME. Cambridge, MA: Harvard University

Press.

Tushnet, Mark. 1999. "The Supreme Court 1988 Forward Law: The New

Constitutional Order and the Chastening of Constitutional Aspiration."

HARVARD LAW REVIEW. 113: 29.

 

Copyright 2000 by the author, Ira L. Strauber.