Post on 29-Dec-2015
transcript
Chapter 14Rights
Group H: Foronda, Fortune, Gerlach, Gicca, Gomez
Rights A right is the legal or moral entitlement to do or refrain from doing
something or to obtain or refrain from obtaining an action, thing or recognition in civil society.
Rights serve as rules of interaction between people, and, as such, they place constraints and obligations upon the actions of individuals or groups.
If one has a right to life, this means that others do not have the liberty to murder him.
If one has a right within a society to a free public education, this means that other members of that society have an obligation to pay taxes in order to pay the costs of that educational right.
Not a privilege!
Rights Individuals may not always understand or know
their rights, but they must be recognized by others. Rights for children Rights for individuals who are mentally incompetent
Rights must be understood and enforced. Therefore, it is the understanding of rights by
society that allows rights to exist.
Types of Rights Abortion
“Right to life” vs. “right to control one’s body”
Welfare “Right to subsistence” vs. “right to dispose of
one’s property as one wishes”
Civil, property, opinion, religion, legal Intellectual and real rights
Types of Rights Constitution
Gives equal rights to all citizens of a nation
As a policy strategy, rights are viewed as a diffuse method of articulating standards of behaviors in an ongoing system of conflict resolution.
Rights are a way of governing relationships and coordinating individual behavior to achieve collective purposes.
Broad Traditions of Rights Positive Tradition
A right is a claim backed by the power of the state. A right is an expectation about what one can do or receive
or how one will be treated. If an injustice occurs, the state will help the citizen.
Normative Tradition Harder to know whether a right exists. Two beliefs
People can have a right to something they do not actively claim or for which the state would not back them up.
Rights derive from some source other than the power of enforcement.
Broad Traditions of Rights Public policy
There is a goal of changing people’s relationships and social conditions.
The positive tradition offers leverage and a definitiveness that normative concepts lack.
Broad Traditions of Rights Many reformers, advocates, and oppressed
people often organize and rally behind the normative type of claim.
Example U.S. founders created the Declaration of Independence in
normative terms. Invoked “the laws of Nature and of Nature’s God.” Felt no need to point to human law
“We hold these truths to be self evident, that all men are created equal…”
How Legal Rights Work 1st – Describing what it is that people want
or could possible get when they call for a legal right
2nd – Describing what they must do to bring a right into existence or realize it People with disabilities call for a “right to work”
Now there is federal legislation that prohibits employers from discrimination based on disability
How Legal Rights Work Procedural
Inquire into the capabilities of each applicant. Spell out a process by which important decisions
must be made. Right to have a decision that affects you, made
in a certain way, but does not include a right to an outcome of a certain kind.
How Legal Rights Work Substantive
Goes beyond procedure to specific actions or entitlements.
Negative Right to do something free of restraint. Right to free speech, assembly, religion
Positive An entitlement to have or receive something. However, means second party must be responsible to
provide the “right-holder” with the entitlement.
How Legal Rights Work: The Magistrate
Civil rights strategy paradox In order to be treated as individuals, people first
must organize and make demands as a group.
Call for a right Establish a formal legal rule to define the
right
The Magistrate Statutory law
Making a new law or amending an old one Administrative law
Broad rules that will apply to a society and implemented by administrative agencies
Common law Decisions of judges as they resolve disputes
Constitutional amendment Most difficult, but does not stop individuals from
trying
The Magistrate Grievance Process
Litigation From the disputing parties’ point of view
Adjudication From the judge’s point of view
Two opposing parties One claiming right denied The other alleged to have denied the right
To be hear by neutral third party Conduct dispute through reasoned argument, rather than
through force, exchange of money, or emotional appeals. Is this always the case?
The Magistrate Enforcement Mechanism
Rights must be backed up by the threat of force Initiated by citizens who think their rights have
been violated Adjudication process provided by government Compliance with courts rests with citizens’
voluntary cooperation
Making Rights in the Polis:
The Normative Basis of Legal Rights
Where do people get their ideas about rights? Official Statements
Constitution, Statutes Civic Education
Moral Philosophy Principles of right and wrong
Religious texts Rational arguments Public opinion Social practices and institutions
This disjunction between moral rights and legal rights drives the whole system of rights-claiming.
What propels people into courts? Moral rights provide the emotional impetus
to action Feeling that there is a moral issue at stake Formal laws and social movements
contribute to one’s ideas about the kinds of problems for which they can expect a legal remedy
Are claimants the only parties who are motivated
by the normative meanings of rights?
NO - Judges appeal to moral ideas and norms
Extremely evident in tort law No official code of torts, as there is a criminal
code Relies on the idea of the “reasonable man” Courts gradually articulate standards of
behavior that change with time Example
19th century tort law with industrialists vs. contemporary tort law and new technology
How do judges justify their decisions? They often say they are only doing what “civilization” or
“public interest” or “standards of decency” or “our complex modern society” requires
Example 1944 suit against Coca-Cola Public policy demands that responsibility be fixed wherever it
will most effectively reduce the hazards to life and health inherent in defective products…It is to the public interest to discourage the marketing of products having defects that are a menace to the public.
Judges reliance on normative visions (in tort law) for resolving disputes is brought into sharper relief than in other areas of law
Departing From Old Precedent Judges justify the decision and prepare the
audience with rhetoric about changed social conditions
Conjure up pictures of society then versus now Tell stories about how current law has failed to
keep up with social change Conclude that “the legal response that we are
about to give is our only choice” E.g. College student who murdered a former
girlfriend shortly after telling his therapist of his intent
Description of Law Oliver Wendell Holmes, 1881 “The life of the law has not been logic; is has been
experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.”
The Political Basis of Legal Rights In theory
The legal system is structured to promote individual participation by even the weakest member of the community
Individual citizens of legal rights help society create and defend the whole body of democratic law when they assert their own individual rights
The Political Basis of Legal Rights In the polis
Litigants do not arrive before the court as interchangeable representatives of issues
Disputes are contests between people who hold positions in society that give them more or less power in the courts
These contests involve concentrated and diffuse interests
These different players have different resources to use in legal contests and different goals in settling disputes
Concentrated vs. Diffuse Interests Concentrated Interests
Parties who use courts often in their everyday affairs
“Repeat Players” Examples
Landlords Insurance companies Banks Lawyers
Diffuse Interests People who use courts
rarely or sporadically “One-Shotters” Examples
Tenants Policy holders Debtors One-time delinquents
Repeat Players Have low stakes in the outcome of any one
case and greater stakes in maintaining an overall position of strength More likely to care about obtaining a declaration
of rights than winning a particular case
More likely to have resources to pursue their long-run interests
One-Shotters Have an intense interest in the case
because the outcome will affect their lives profoundly More likely to care about the tangible outcome of
the case than about establishing a rule to govern future cases
Probably have few resources
Competing Interests Disputes between repeat players
Unions vs. Employers Regulatory Agency vs. Regulated Firms
Disputes between one-shotters Divorce Cases Neighborhood Disputes
Disputes between repeat players and one-shotters—majority of legal contests Landlords vs. Tenants Prosecutors vs. Criminal Defendants Finance Companies vs. Debtors Manufacturers vs. Consumers SSA vs. SS Claimants Welfare Agency vs. Welfare Clients
Structuring of Disputants The conscious structuring of disputants happens
in many ways “Ideal” individual as plaintiff
NAACP handpicked plaintiffs in most of the civil rights cases of the 1950s and 1960s
Organization or several organizations as plaintiff or defendant
Trade unions play an active role as plaintiffs in disputes over occupational safety and health legislation
Class action suit Consumer product liability suits
Representation Judges and disputants worry about whether
an organization or class is truly representative of the plaintiffs it purports to represent
Strategies of legislative politics Stacking the plaintiffs Ticket balancing
Both strategies broaden the normative appeal of a position
Do Rights Work? Rights ‘work’ by mobilizing new political
alliances, transforming social institutions, and dramatizing the boundaries by which communities are constituted Litigation offers an arena where people can play
out their problems as conflicts between good guys and bad guys
Thus, rights can create a new sense of collective identity and stimulate new alliances
Public Law Litigation Aimed at changing a whole systematic pattern of
practice in a large area of public policy Racial balance of public school systems Treatment of patients in mental hospitals Management of prisons Design of electoral districts Concentration of firms in an industrial sector
The goal of these suits is to transform the way an institution operates
Critique of Rights Conservative
American society too generous with rights Entitlements undermine people’s willingness to work
and their drive to self-sufficiency, and ultimately lower the productive potential of the nation
Liberal American rights are under-developed
Rights are too fragile and don’t include affirmative rights to subsistence and security
Conclusion Rights are policy instruments Rights are dependent on and subject to
larger politics Rights provide occasions for dramatic
rituals that reaffirm or redefine society’s internal rules and its categories of membership