chapter  10
31 Pages

The fight for basic legal freedoms: mobilization by the legal complex

ByTERENCE C. HALLIDAY

Rights discourse is now global discourse (Hajjar 2004). International organizations such as the United Nations propagate universal human rights (Boyle 2002; Merry 2003, 2005). International courts prosecute military personnel and political leaders for the abrogation of basic human rights (Hagan 2003, 2005; Hagan et al. 2005). International financial institutions champion property rights and a rule-of-law that will uphold them (La Porta et al. 1997). National governments appraise other governments against the standard of their fealty to human rights. Citizens claim rights, not only in countries where they are well institutionalized, but in countries where they are regularly abrogated. Indeed, one of the principal ways that citizens or residents of a country now hold their government accountable is by alleging the government’s breach of a right thoroughly institutionalized in global normative scripts, such as the UN Universal Declaration of Human Rights. This chapter focuses on those foundational rights of western political liberalism,

variously referred to as core civil rights, basic legal freedoms, or first generation rights. Frequently these rights, which emerged in the seventeenth and eighteenth centuries, are taken for granted as the frontier of rights has successively pushed forward to social, economic, and political rights. Nevertheless, in countries where core civil rights have been long established, their persistence cannot be taken for granted (Halliday and Karpik 1998b). And in countries where they have never been institutionalized, struggles remain immanent and widespread. Understanding how core legal rights are institutionalized, how they are

maintained and defended, warrants careful sociological inquiry. Who are the primary bearers of rights, their advocates and defenders? What are the conditions under which they are established, consolidated, and protected? These questions have been broached in an international collective project on lawyers and the fates of political liberalism. For the past 15 years, a collaborative of social scientists, historians, and legal academics has examined some 20-30 cases of transitions towards and away from political liberalism. These cases range from Continental and North American states in the eighteenth to nineteenth centuries to countries in Latin America, the Middle East, Asia, and Europe in the twentieth century (Halliday and Karpik 1998a; Halliday et al. 2007a).