ABSTRACT
The relevance of critical sociolegal studies rarely has been more apparent than in the previous decade of debates over the political utility of “rights” discourse. At stake in such debates is the principal strategy of modern social reform movements, which have relied heavily on rights claiming as a method for aiding oppressed groups and taken for granted the moral correctness of expanding rights. The conservative and communitarian critique is that the present preoccupation with assigning rights to everything has severed the meaning of the term from its constitutional basis and that the proliferation of rights engenders conflict between groups, accentuates the selfish-individualist strand of American culture, and signals the decline of community. While this critique views the denigration of rights discourse as recent phenomena, a second critique sees rights, like all other legal concepts, as incoherent, indeterminate, and internally contradictory because, for example, policies expanding rights sometimes contain contradictory goals, such as simultaneously promising liberty and state “protection” (Minow 1987: 1864). According to this perspective,
Rights are too contingent to be relied upon. Even small changes in setting or circumstances modify or minimize the meaning of rights. Thus, rights are neither inherent nor generalizable. The consequences of rights are indeterminate. There is nothing there. (Milner 1991:259)
