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