ABSTRACT
What can we still make of ‘rights’ discourse from the perspective of jurisprudence? Critical legal theory may have been put on a false track by having denounced rights as simply the ideological operators of legal liberalism and therefore as limiting political analysis to the terms of ‘individual’ freedom. This becomes more apparent the more that certain critical approaches to legal studies find the need to speak on behalf of the very minorities for whom the language of ‘rights’ remains a necessary and practical tool, particularly for finding their way around the social institutions of liberal democracies. By neglecting the various senses of ‘rights’ in jurisprudence we may have deprived ourselves of an approach suitable for addressing the kind of power that operates in these institutions. It is not the language of rights, for instance, which necessarily places law’s ideology in question under democratic states. The democratic state has made rights a dominant idiom of law; it has reduced legal rights to the matter of their representation and codification in law, and in doing so has left in relative disrepair the jurisprudential techniques that have evaluated their juridical expression. It is in this sense primarily that rights remain as what they have traditionally been for liberalism: the mere tokens or relative ‘trump cards’ in the drama of litigation, but also as the simple means of having oneself ‘recognized’ within the dominant system of legal order.
