Transcript Rights Deborah Stone - University of Florida

Chapter 14
Rights
Group H: Foronda, Fortune, Gerlach, Gicca, Gomez
Rights
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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.
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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
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Individuals may not always understand or know
their rights, but they must be recognized by
others.
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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
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Abortion
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Welfare
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“Right to life” vs. “right to control one’s body”
“Right to subsistence” vs. “right to dispose of
one’s property as one wishes”
Civil, property, opinion, religion, legal
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Intellectual and real rights
Types of Rights
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Constitution
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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
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Positive Tradition
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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
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Harder to know whether a right exists.
Two beliefs
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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
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Public policy
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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
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Many reformers, advocates, and oppressed
people often organize and rally behind the
normative type of claim.
Example
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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
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“We hold these truths to be self evident, that all men are
created equal…”
How Legal Rights Work
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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
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People with disabilities call for a “right to work”
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Now there is federal legislation that prohibits
employers from discrimination based on disability
How Legal Rights Work
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Procedural
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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
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Substantive
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Goes beyond procedure to specific actions or
entitlements.
Negative
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Right to do something free of restraint.
Right to free speech, assembly, religion
Positive
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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
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Civil rights strategy paradox
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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
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Statutory law
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Administrative law
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Broad rules that will apply to a society and
implemented by administrative agencies
Common law
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Making a new law or amending an old one
Decisions of judges as they resolve disputes
Constitutional amendment
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Most difficult, but does not stop individuals from
trying
The Magistrate
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Grievance Process
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Litigation
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Adjudication
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From the judge’s point of view
Two opposing parties
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From the disputing parties’ point of view
One claiming right denied
The other alleged to have denied the right
To be hear by neutral third party
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Conduct dispute through reasoned argument, rather than
through force, exchange of money, or emotional appeals.
Is this always the case?
The Magistrate
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Enforcement Mechanism
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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?
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Official Statements
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Constitution, Statutes
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Moral Philosophy
Principles of right and wrong
 Religious texts
 Rational arguments
 Public opinion
 Social practices and institutions
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Civic Education
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This disjunction between moral rights and legal
rights drives the whole system of rights-claiming.
What propels people into courts?
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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
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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
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19th century tort law with industrialists vs.
contemporary tort law and new technology
How do judges justify their decisions?
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They often say they are only doing what “civilization” or
“public interest” or “standards of decency” or “our complex
modern society” requires
Example
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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
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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
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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
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In theory
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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
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In the polis
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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
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These different players have different resources to use in
legal contests and different goals in settling disputes
Concentrated vs. Diffuse Interests
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Concentrated Interests
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Parties who use courts often
in their everyday affairs
“Repeat Players”
Examples
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Landlords
Insurance companies
Banks
Lawyers
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Diffuse Interests
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People who use courts
rarely or sporadically
“One-Shotters”
Examples
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Tenants
Policy holders
Debtors
One-time delinquents
Repeat Players
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Have low stakes in the outcome of any one
case and greater stakes in maintaining an
overall position of strength
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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
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Have an intense interest in the case
because the outcome will affect their lives
profoundly
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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
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Disputes between repeat players
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Disputes between one-shotters
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Unions vs. Employers
Regulatory Agency vs. Regulated Firms
Divorce Cases
Neighborhood Disputes
Disputes between repeat players and one-shotters—majority
of legal contests
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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
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The conscious structuring of disputants happens
in many ways
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“Ideal” individual as plaintiff
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Organization or several organizations as plaintiff or
defendant
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NAACP handpicked plaintiffs in most of the civil rights cases
of the 1950s and 1960s
Trade unions play an active role as plaintiffs in disputes over
occupational safety and health legislation
Class action suit
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Consumer product liability suits
Representation
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Judges and disputants worry about whether
an organization or class is truly
representative of the plaintiffs it purports to
represent
Strategies of legislative politics
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Stacking the plaintiffs
Ticket balancing
Both strategies broaden the normative
appeal of a position
Do Rights Work?
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Rights ‘work’ by mobilizing new political
alliances, transforming social institutions,
and dramatizing the boundaries by which
communities are constituted
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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
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Aimed at changing a whole systematic pattern of
practice in a large area of public policy
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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
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Conservative
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American society too generous with rights
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Entitlements undermine people’s willingness to work
and their drive to self-sufficiency, and ultimately lower
the productive potential of the nation
Liberal
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American rights are under-developed
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Rights are too fragile and don’t include affirmative
rights to subsistence and security
Conclusion
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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