Rights

Sociological Perspectives

Lydia Morris

• Publisher: Routledge
• Year: 2006
• Print ISBN: 9780415355223
• eBook ISBN: 9781134255320
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

This pioneering book demonstrates how different traditions of sociological thought can contribute to an understanding of the theory and practice of rights. It provides a sociological treatment of a wide range of substantive issues but never loses sight of the key theoretical questions.

It:

• considers some varied cases of public intervention, including welfare, caring, mental health provisions, pensions, justice and free speech alongside the rights issues they raise
• examines the question of rights from the point of view of distinctive population groups, such as prisoners and victims, women, ethnic minorities, indigenous peoples and lesbians and gays.

A key strength is its detailed presentation and analysis of different aspects of rights and its exploration of a variety of analytical perspectives. Rights are viewed, not in terms of ethical certainty, but as the product of social processes and part of shifting terrain which is open to negotiation.

Including a theoretical critique of existing perspectives, Rights offers a diverse and detailed exploration of the contribution sociological thought can make to this increasingly important aspect of social life and is an invaluable aid to students studying in this area.

Part I Political Economy and Rights

The opening part of the book contains three chapters that fall roughly into the tradition of political-economy analysis, in which an emphasis is placed on the holistic understanding of a social formation, through a focus on the political and economic relationships that underpin social life. The first of these chapters considers a radical critique of the liberal tradition of rights, though from a position generally accepting of the priority placed on individual well-being, and on equal worth. The argument of the chapter, however, challenges the broader assumptions that have prevailed in rights discourse, notably a view of the individual as divorced from both benign and malign dependencies. Neglect of the former underestimates the extent to which individual identity is located in interpersonal relations, while neglect of the latter underestimates the effect of socio-economic inequality on access to, and the value of, individual freedoms. Instead of questioning this framework, it is argued that existing human rights guarantees seem to operate from within and to offer forms of amelioration that contain rather than challenge inherent tensions. A similar argument was advanced by Marshall (1950), but Benton goes further, in advocating an approach that places rights in a much wider context, and asks, for example, why restraint on the actions of others should be so central to well-being, and what the implied sources of harm might be.

When viewed in truly universal terms, the answer to this question extends to the system of trade regulation disadvantaging the poorer countries of the world, tied to export-led growth, a high reliance on imports, low public spending and gross indebtedness; a package that siphons off a large proportion of their available revenue. The broader context of rights and possible harms would also take in the ‘organised non-liability’ endemic in the ‘risk society’ (Beck, 1992), linked to damaging occupational histories and environmental hazards, both of which are most likely to characterise life at the lower end of the class hierarchy. These harms are not readily addressed by an individualised regime of rights, and even assuming that they were, the liberal model carries the implied assumption that if secured from such harms all individuals have the capacity to construct for themselves a fulfilling life. Benton argues that this view neglects both the impact that unequal access to material, cultural and educational resources can have on such a capacity, and the interpersonal relations and community bonds that for many are the source of meaning in life. His argument closely connects with attempts to develop a more enabling approach to rights by a focus on capabilities (Sen, 1999; Nussbaum, 2000), and leads to Benton’s alternative vision for a regime of rights that recognises the underpinnings of effective presence and agency in society, and the interpersonal relationships on which it builds.

The second chapter to adopt the political economy approach also evokes questions about the nature of interpersonal and community dependencies in the context of pension rights. It is, in addition, concerned with larger-scale issues shaping the generation and commitment of resources to address the pressing problem of provision for old age. If we accept Turner’s bodily frailty and social precariousness as a basis for claims to rights, none could seem as unquestionable as a right to support in old age, yet the basis and substance of pension rights has become a pressing problem in contemporary capitalist society. Truly universal state pensions tend to take the form of minimal, residual provision, though ageing populations in the developed world mean this still poses a huge challenge to national exchequers. Occupational pensions have become less and less viable, and in private schemes, while there is a right to be fairly and honestly treated, the market risk of investing is borne by the contributor, and there is no guarantee of a pension. The variable mix of public and private provision in operation can be construed more readily as a system of civic stratification (as outlined in Chapter 4) than as a viable system of universal entitlement, especially when tax relief on private schemes, which favours wealthier savers, is taken into account.

At the heart of the pensions problem lies the question of the relationship across generations and the nature and degree of responsibility that the current taxable population carries for the contemporary elderly. In a tax-based system, each contributor pays not for their own needs in old age, but for the needs of the prior generation. When the age cohorts are dramatically out of balance this relationship either imposes a huge responsibility on a small cohort or undermines the entitlements of the larger cohort. So what does a system of cross-generational justice look like in these circumstances, and who bears the cost of a socially responsible approach to old age? When pensions are considered in this light, the language of rights seems rather distant, and the approach serves instead to highlight the difficult configuration of rights, resources and the location of responsibility. The temptation for states to privatise all provision, thereby opting for a system of selfresponsibility, is immense, but as Blackburn points out, an expensive solution given the marketing and salary costs of private providers. It would also be a classic example of the desocialised, atomised individual represented by the classical liberal model of rights discussed in Chapter 1, and is of course grossly inequitable.

The third example of a political economy approach to rights also grapples with the problem of ageing, but in relation to the right to physical care. The issue of a right to care is in some respects more complex than that of the right to a pension, requiring the recognition of caring as fundamentally relational, but separable from other aspects of a social relationship, and identifiable as a form of work. As in the case of pensions, making the philosophical case for a right to care is rather less challenging than the implementation of such a right in practice. This requires not only the acceptance of a universal principle, as in the ‘frailty’ theory of rights, but also the delivery of particularised provision, according to differing dependencies and vulnerabilities. Again like pensions, the place of each individual in the underpinning roles and relationships will shift as they move through the life course. As Chapter 3 makes clear, the ensuing nexus of rights, relationships and responsibilities will be historically and culturally variable, and care is therefore to be analysed as an embedded feature of contrasting systems of exchange, reciprocity and obligation premised on very varied socio-economic arrangements.

Of course, the recognition of a right to care also entails a more difficult decision to identify cases in which the resource investment may be too great when weighed against the diminishing benefits. In this sense, the right to care requires judgements of relative desert, which are partially resource driven, and which will be resolved differently according to the social, economic and cultural context. The comparative approach advocated in Chapter 3 is particularly revealing in this respect, and demonstrates how the concept of rights need not be confined to legally based claims and calls on the state. It may equally operate in the context of culture and tradition, based, for example, on kinship obligations and expectations, often gendered, that operate to varying degrees in different societies. We might also find that several systems of provision operate simultaneously in any given society, embodying different types of exchange relations and yielding multiple and possibly conflicting expectations and obligations. Different systems will also raise their own problems with respect to equity, standards, monitoring and respect for the rights of both givers and receivers of care.

1 Do We Need Rights? If So, What Sort?

Ted Benton

DOI: 10.4324/9780203001875-1

In what follows I want to consider the implications of a long tradition of radical scepticism about rights. The arguments of the sceptics have a number of rather different sources and targets, some turning on the effects, intended or not, of the institutions through which rights are allocated, some calling into question the conceptual foundations of rights discourse. Here I try to bring together the main lines of argument against rights – specifically ‘human rights’ – to see how effectively they address current social and political realities. I conclude by considering what alternative normative framework or institutional order might achieve what the prevailing discourses and practices of ‘rights’ arguably fail to do.

Liberal Rights: The Classical View

The classical (i.e. seventeenth- and eighteenth-century) advocacies of ‘natural’ rights, or ‘rights of man’, have well-rehearsed limitations in terms of their implicit exclusions, but these are not central to the arguments I want to develop here. For our purposes there are two main moral intuitions in the classical discourse of rights: (a) the moral priority accorded to the well-being of the individual person; and (b) the notion that all individuals have equal value, are equally worthy of respectful treatment. In the classic statements there is some diversity in the ways individual well-being is characterised. These often appear as differences of emphasis, but the emphasis does have implications. Sometimes the emphasis is on the vulnerability of individuals, so that the moral requirement is to protect them from abuse. Sometimes the emphasis is on individuals as agents, capable of autonomously devising a life-plan and living it. Here the moral requirement is to remove obstacles in the way of their autonomous action.

Irrespective of diversity in conceptions of the good for individuals, the twin moral intuitions of classical liberal political philosophy imply advocacy of an authoritative normative framework, with the concept of rights at its core. The well-being of each citizen is to be assured by a legal order that restrains both sovereign and citizen with regard to those acts that might impinge on it: citizens are defended in their freedom of action in so far as their exercise of it is consistent with an equal freedom on the part of others. To be thus protected in their circumscribed sphere of autonomy is the right of each citizen:

Liberty consists in being able to do anything that does not harm another person. Thus the exercise of the natural rights of each has no limits except those which assure to other members of society the enjoyment of these same rights; these limits can be determined only by law.

(Article 4 of the French Declaration of the Rights of Man and Citizen, 1789)

Depending on how the well-being of the individual is conceptualised, I speak of ‘passive rights’ (with the focus on protecting individuals from abuse), and ‘active rights’ (with the focus on their pursuit of a self-chosen life-plan).

For the arguments that follow, it will be helpful to draw attention to some of the further underlying assumptions of this classical liberal discourse of rights. The first is that self-identity is a ‘given’ property of individuals independently of their social participation, as, in the case of the requirement for active rights, is the capacity to devise and live out a life-plan. A second, closely related, assumption is that, given protection from interference by others, each individual can achieve their own well-being independently of those others: that is to say, ‘well-being’ is a non-relational property of individual persons. A third assumption – otherwise why do we need an authoritative apparatus to restrain it? – is that citizens and the sovereign are disposed to abuse or obstruct one another in the exercise of their basic freedoms. A fourth is that a clear distinction can be made between those acts (‘self-regarding’) that do not risk infringing the well-being of others, and those (‘other-regarding’) that do carry such a risk, and so can be legitimately restrained. The fifth, and, for our purposes, final, assumption is that the harms from which individuals need to be protected, or the obstacles in the way of their fulfilment of their life-plans, arise from the intentional acts of other individuals, or the sovereign power (usually thought of as a ‘super-subject’, or leviathan).

Radical Scepticism About Liberal Rights

Now to the arguments of the radical sceptics about rights. Most of these (at least, those whose arguments I want to explore here) share with the liberal tradition at least two normative intuitions. These are: a recognition of individual persons as bearers of intrinsic value; and a commitment to the equal value of each person. However, there are differences in the way individual persons are conceptualised, and, especially, in the way these critical traditions think about individual well-being. As we shall see, the significance of individual vulnerability, as well as the moral importance of the autonomous pursuit of one’s own good, may be endorsed, but with rather different outcomes.

The Antagonism of Interests

The first step in the sceptical critique is to ask why securing the well-being of each individual should require the allocation of basic rights, conceived as restraints on the actions of citizens with regard to each other, and of the sovereign power with respect to the citizens. This can only be because it is assumed that either the sovereign or other citizens, or both, would otherwise be liable to abuse or invade the sphere of autonomy of each individual. It is, in other words, assumed that there is an endemic conflict of interests between individual citizens and between them and the sovereign power. But these assumptions can be seen as appropriate only to a specific historical period or form of social order. Alternative forms of social coexistence can be imagined in which individual citizens were not disposed to abuse one another, or to interfere with one another’s pursuit of their chosen life-plans, and in which there was no public power set over and against the citizens. Some socialist, ecological and anarchist utopias postulate such a way of social living. Such a mode of life, if it were possible, would be one in which the well-being of each would be secured spontaneously, without need of the discipline of an apparatus of rights and justice. It was the philosopher David Hume who famously specified two key conditions for such a state of affairs: unlimited abundance and mutual benevolence.

Personal Identity– Given or Achieved

Below I consider in more depth the feasibility of this most radical version of the sceptical argument. First, however, it is necessary to consider some more specific conceptual and empirical issues surrounding the liberal view of rights. First is the conception of personal identity as a ‘given’, as a property of individuals prior to social participation. This is implicit in classical notions of a ‘state of nature’ prior to the establishment of a social contract that underpins the authority of the public power and its laws. It is also present in the work of more recent political philosophy, most influentially in the Rawlsian notion of an ‘original position’ behind an imagined ‘veil of ignorance’ (Rawls, 1971). By contrast, sociologically informed thinking about personal identity understands it not as a ‘given’, but as an achievement. It is an achievement won in the course of participation in social practice and through reflection upon it. Personal autonomy, then, is an achievement made possible only where the developing individual has the interpersonal, emotional-relational, cultural-linguistic, social structural and material-ecological conditions of life that sustain and favour it.

Life-Plans and How to Live Them

Connectedly, the ontology of the liberal view of active rights supposes that each individual is able to devise and to live out a life-plan, as long as she or he is not interfered with by others. But there are several respects in which this view is too sociologically thin, or ‘minimalist’ (respects that parallel those in which the neo-liberal view of the minimal state is too ‘thin’). First, to devise a life-plan that is in the required sense one’s own life-plan presupposes the achievement of autonomous self-identity. This, as I have just suggested, has complex cultural, social and ecological conditions, failure or neglect of any of which may lead to failure to acquire the capacity even to devise a coherent plan of life. Second, for a life-plan to be devised as a meaningful expression of the will or identity of its agent (and this is surely required if it is to bear the moral weight attached to it in liberal thought) it must be one chosen or constructed within a cultural world that includes a variety of such visions and the materials for comparing and evaluating them, together with access to the personal skills and competences for appreciating and choosing: in short, a rich and diverse public culture and access of individuals to it (at the very least, a broadly based education, accessible to all).

The third consideration has its classic expression in the work of Durkheim. No fully human life is possible without some connection with the life of society. Even the hermit or religious recluse can make sense of their self-exclusion from society in terms drawn from the wider stock of cultural resources, and the monastic life is itself a form of society. So the life-plan I devise will of necessity be one that includes a certain vision of my relationships with others – with a sexual partner, parents, offspring, siblings, friends, acquaintances – and with a range of favoured experiences – artistic creation, a certain sort of work or career, inhabiting a certain chosen physical or cultural environment, playing or watching a certain sport or game, living according to a chosen set of moral beliefs and so on. Others, when we start to give concrete form to the idea of a life-plan, figure not just as potential obstacles to our project, but, instead (or also) as indispensable partners, associates and conditions for it. We cannot, in other words, have a life-plan that is not inseparably intertwined in its very constitution with the living out by others of their life-plans.

This suggests that autonomous living presupposes a deeper commonality of shared understandings and purposes. Durkheim (1951) used statistical variations in suicide rates to argue a closely related point. A society that promotes individual egoism at the expense of such deeper commonalities risks becoming one in which individuals are incapable of linking their own private purposes with wider social meanings. Durkheim’s claim is not just that this is dangerous for the society, but that it is dangerous for the individual: that what sustains our ability to make sense of our own lives and their purposes is their connection with the life of the wider society. Lacking this sense of the place of our own life-plan in the communities to which we belong, we are vulnerable to a loss of meaning in our own life even to the point of finding that life not worth living. Of course, there are hazards for the society, too, in the shape of a drift towards instrumentalism, fragmentation and the corruption of public life, on the one hand, and increased vulnerability to the appeal of demagogic and totalitarian versions of community, on the other. Even as early as the latter part of the eighteenth century, Smith and Ferguson, luminaries ...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Contributors
• Acknowledgements
• Sociology and Rights – an Emergent Field
• Part I Political Economy and Rights
• 1 Do We Need Rights? If So, What Sort?
• 2 Return of the Proletariat? Pension Rights and Pension Finance in the Ageing Society
• 3 Developing an Economic Sociology of Care and Rights
• Part II Status, Norms and Institutions
• 4 Social Rights, Trans-National Rights and Civic Stratification
• 5 ‘Women's Rights are Human Rights' Campaigns and Concepts
• 6 Human Rights, Anti-Racism and EU Advocacy Coalitions
• Part III Meaning, Interpretation and Rights
• 7 Rights, Social Theory and Political Philosophy A Framework for Case Study Research
• 8 Rights Work Constructing Lesbian, Gay and Sexual Rights in Late Modern Times
• 9 The Sociology of Indigenous Peoples' Rights
• The Clash of Rights
• 10 Punishment, Rights and Justice
• 11 Mental Disorder and Human Rights
• 12 Free to Speak, Free to Hate?
• 13 A Foundation for Rights or Theories of Practice?
• Bibliography
• Index