Beyond the Rights Debate
| Author | Didi Herman |
| Published date | 01 March 1993 |
| Date | 01 March 1993 |
| DOI | http://doi.org/10.1177/096466399300200102 |
| Subject Matter | Articles |
25
BEYOND THE RIGHTS
DEBATE
DIDI
HERMAN
Keele
University,
UK
ITHIN
SOCIO-LEGAL
theory,
much
has
been
written
about
the
‘politics
of
rights’,
legal
academics
lining
up
to
either
defend
or
attack
VV
the
struggle
for
rights
in
liberal
democracies.
Most
progressive
legal
theorists
agree
that
’rights’
(as
objectives
and
rhetoric)
are
potentially
problem-
atic,
for
a
variety
of
reasons.
The
main
point
of
disagreement,
as
I
read
it,
is
between
those
who
characterize
’rights’
as
abstract,
individualistic,
disem-
powering
and
obfuscatory
(Freeman,
1982;
Fudge,
1987,
1989;
Gabel,
1984;
Glasbeek,
1989a,
1989b;
Kingdom,
1991;
Mandel,
1989;
Smart,
1989;
Tushnet,
1984),
and
those
who
say
rights
struggles
may
be
these
things,
but
they
can
also,
perhaps
simultaneously,
be
empowering,
necessary,
foci
for
resistance
(Hunt,
1991;
Matsuda,
1987;
Minow,
1990;
Schneider,
1986;
P.
Williams,
1987;
R.
Williams,
1987).
From
either
a
Marxist
or
poststructuralist
position,
’rights
critics’
argue
that
current
rights
struggles
are
either
examples
of
a
depoliticized
culture,
or
questionable
invocations
of
dangerous
discourse.
’Rights
defenders’,
on
the
other
hand
(some
of
whom
also
espouse
socialist
and
poststructural
perspec-
tives),
emphasize
the
positive
effects
of
rights
struggles
upon
social
movement
mobilization
and
individual
consciousness,
while
tending
to
marginalize
the
structural
and
discursive
constraints
noted
by
the
’rights
critics’.
Much
of
this
discussion
has
tended,
in
my
view,
to
be
clouded
by
a
confusing
use
of
terms
whereby
concepts
such
as
’rights’,
’law’,
’the
state’
and
’litigation’
are
collapsed
and
employed
interchangeably.
A
parallel
development
has
been
the
emergence
of
an
extensive
literature
on
’the
new
social
movements’
(Cohen,
1985;
Melucci,
1989;
Mouffe,
1988;
Offe,
1985;
Touraine,
1985).
Initially,
those
using
the
phrase
noted
the
proliferation
of
activist
struggles,
often
perceived
to
be
located
in
the
realm
of
’culture’,
crossing
26
and
seeming
to
deny
class-based
consciousness
and
agency.
Some,
such
as
Laclau
and
Mouffe
(1985),
saw
in
this
development
the
inevitable
fragmentation
of
social
struggle
in
advanced
capitalism,
and
viewed
this
as
promising
the
positive
rearticulation
of
an
oppositional
counter-hegemonic
project.
Others
have
been
more
critical
of
’new
movement’
theory,
arguing
that
it
tends
to
be,
among
other
things,
eurocentric
and
insufficiently
attentive
to
economic
questions
(Epstein,
1990;
Gelb,
1990;
Plotke,
1990).
In
a
recent
article,
Judy
Fudge
and
Harry
Glasbeek
(1992)
have
taken
up
many
of
these
ideas.
They
write
that
a
’politics
of
rights’,
led
by
the
’new
social
movements’,
is
threatening
to
shift
social
struggle
away
from
the
structural
conditions
at
the
root
of
inequality -
economic
restructuring
in
late
capitalism
(postfordism).
This
economic
context
precludes
the
politics
of
rights
from
becoming
a
’politics
of
transformation’
(1992: 66).
The
danger
is
that
it is
possible
that
new
social
movements,
with
their
concern
to
preserve
the
autonomy
of
resistance
based
on
different
oppressions,
which,
in
large
part,
reflect
the
social
relations
of
production,
may
reinforce
the
dominant
hegemony,
rather
than
pose
a
challenge
to
it.
In
short,
the
politics
of
the
new
social
movements
may
be
channelling
struggles
without
challenging
the
deeper
relations
of
subordination.
Just
now,
the
material
conditions
which
characterize
political
economies
of
the
advanced
industrial
states
make
this
quite
likely.
(1992:
64)
These
are
strong
and
provocative
claims.
z
In
this
paper,
I
consider
Fudge
and
Glasbeek’s
approach
in
light
of
my
own
research
on
one
such
social
movement -
the
lesbian
and
gay
rights
movement
in
Canada,
the
country
which
forms
the
main
subject
of
their
analysis.
Fudge
and
Glasbeek’s
argument,
although
not
directed
at
any
specific
movement,
would
seem
to
lead
to
the
abandonment
of
the
lesbian
and
gay
rights
movement,
and
several
others,
as
agents
of
social
transformation.
I
disagree.
I
begin
by
setting
out
their
views,
and
then
follow
this
by
examining
several
of
their
contentions.
Although
I
am
quite
critical
of
Fudge
and
Glasbeek’s
analysis,
I
also
explore
the
contributions
of
several
’rights
defenders’
and
argue
that
both
sides
of
the
debate
offer
similarly
reductionist
paradigms.
The
paper
is
organized
around
three
primary
themes:
the
concept
of
’transformation’;
the
relationship
between
law
and
social
change;
and
the
role
of
right-wing
social
movements.
THEIR
ARGUMENT
Fudge
and
Glasbeek
begin
by
noting
two
related
developments
in
recent
years.
First,
the
Left’s
awareness
that
substantive
inequalities
and
discriminations
have
not
withered
away
despite
the
granting
of
many
formal
legal
rights.
This
has
led
to
the
posing
of
questions
such
as -
how
do
we
make
the
liberal
promise
of
equality
a
reality?
How
do
we
transform
political
struggle
to
end
substantive
discriminations?
Second,
they
note
that
many
of
the
socialist
analyses
and
strategies
associated
with
Marxism
are
now
seen
to
be
redundant,
obsolete
or
just
plain
wrong.
This
increasing
concern
with
diverse
inequalities,
coupled
with
the
,
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