Vol. 3 No. 2 (February, 1993) pp. 7-8

RIGHTS TALK: THE IMPOVERISHMENT OF POLITICAL DISCOURSE by Mary Ann Glendon. (New York: The Free Press, 1991. Pp.218. $22.95 hardcover).

Reviewed by John Anthony Maltese, University of Georgia.

In her wonderfully readable book, RIGHTS TALK, Mary Ann Glendon argues that Americans have a propensity to translate nearly every social controversy into a clash of rights. She further argues that the rhetoric used to describe those clashes is one that stresses both hyperindividualism at the expense of social responsibility and an absolutist formulation of rights at the expense of compromise. She concludes that this "American rights dialect" is different from that of other liberal democracies, and that it "promotes unrealistic expectations, heightens social conflict, and inhibits dialogue"; moreover, it fosters "a climate that is inhospitable to society's losers" (p.14). In short, Glendon argues that America is the land of the "lone rights bearer" -- "helmetless and free on the open road" (p. 46) -- who treats rights as entitlements and who uses them as the ultimate weapon: a trump against opponents in which the "winner takes all and the loser has to get out of town" (p.9).

Glendon argues that our American rights dialect was strongly influenced by the language and images of John Locke as relayed in "the genial, garbled, and simplified version of Blackstone" (p.24). Through them, Americans latched onto property as the prototypical natural right -- "the cardinal symbol of individual freedom and independence" (p.24). In contrast, the European rights dialect reflected the rather different view of property espoused by Jean-Jacques Rousseau who, by pointing out "the relationship of property to selfishness, greed, power, and violence...painted a serpent in the midst of Locke's garden of peaceful labor" (p.33). Drawing on the classical and the Biblical, Rousseau stressed that notions of community and public good override property rights. Thus, while the American view of property led to an "exaggerated absoluteness" in our rights rhetoric (reflected in the Supreme Court's conception of property rights from the late 1800s through the 1930s, and in its more recent approach to individual rights), Europeans have been more wary of absolute formulations of rights. Moreover, modern European laws and constitutions couple rights with explicit responsibilities for its citizens (p.103). In contrast, the language of responsibility is all but missing from the vocabulary of American public discourse.

For Glendon, our simplistic and exaggerated rights talk and our virtually nonexistent responsibility talk reflects the impoverishment of our political discourse. The result is "a verbal caricature of our culture" that "captures our devotion to individualism and liberty, but omits our traditions of hospitality and care for the community" (p.xii). Our approach to the abortion issue is a prime example. In the United States it is "typically framed as pitting two interests against each other in an all-or-nothing contest: the right to life of the fetus against the pregnant woman's right to privacy and self-determination" (p.64). As she does frequently in the book, Glendon contrasts other countries' approaches to the issue. With regard to abortion, she finds the legal solutions of Canada and the former West Germany to be more attractive than ours. In part, that may reflect Glendon's predilection for leaving the issue to the ordinary legislative and political process (where compromise solutions are supposedly easier to fashion). But Glendon's more compelling argument is that pregnant women in the United States -- especially poor, pregnant women -- are left with "their constitutional right to privacy and little else. Meager social support for maternity and child raising, and the absence of public funding for abortions in many jurisdictions,...leave such women largely isolated in their privacy" (p.65). Quite simply, our preoccupation with rights as an end in themselves is insufficient to solve our social problems. Few can argue with that. But while our rights talk reflects that preoccupation (and may help to induce it), it is by no means clear that a richer discourse on the abortion issue would lead to significantly better results, nor is it necessarily the case that compromise is always a better solution than more

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absolute formulations of rights.

In her discussion of BOWERS V. HARDWICK (pp.151-58), Glendon points out that, again, the right to privacy was couched in all-or-nothing terms with "every one of the opinion writers" assuming that "if a right were involved, there was virtually no state interest that could prevail against it" (p.157). Thus, in his majority opinion, Justice Byron White denied that Michael Hardwick had any protection from laws criminalizing certain forms of consensual sexual conduct (even in the privacy of his bedroom) because the Constitution does not provide "'a fundamental right to engage in homosexual sodomy"' (p.151). White did not, however, explain how "homosexual activity between consenting adults is less 'private' than the clinic abortion of a well-developed fetus" that was permitted by the Court in previous cases, nor "why the majority balked at setting aside the obsolescent sodomy laws of half the states, when earlier privacy decisions had struck down even quite modern abortion laws in virtually all of them" (p.156).

Still, it is not so much the outcome in BOWERS that Glendon disagrees with, as it is the way the Court reached the outcome. A more thoughtful, tempered opinion couched in a more clearly articulated concept of the right to privacy would have made the same outcome more palatable and less divisive. Glendon compares the BOWERS decision with a similar case decided by the European Court in DUDGEON V. THE UNITED KINGDOM, and finds the "cryptic" BOWERS opinions to be lacking in comparison. For Glendon, what is missing from the BOWERS majority is not only thoughtful and persuasive judicial reasoning, but a sense of community and compassion. As she puts it: "The more searching and tentative style of the European Court, its open wrestling with the weaknesses as well as the strengths of the positions it eventually took in DUDGEON, gives winners fewer grounds for gloating and leaves the losers less reason to feel angry and alienated" (p.155).

It is that sense of responsibility to community -- "the missing dimension of sociality," as she puts it -- that seems to trouble Glendon the most throughout her book. Put differently, she is concerned that MORALITY is a missing component in the law (pp.86-87). For instance, Glendon goes to some length to criticize the way courts have articulated the no-duty-to-rescue rule of tort and, more recently, constitutional law (pp.76-98). Here (as elsewhere), Glendon stresses the role of courts as teachers, and laments their failure to inculcate basic social values. But WHOSE values? For Glendon, the primary values seem to be responsibility and compromise. To others, the value could just as easily be the protection of the unborn fetus, the privacy of its mother, or the right of Michael Hardwick to be let alone in the most intimate aspect of human relationships. Could it be that Glendon perceives our rights dialect to be even more shrill than it really is because she is singing in a different key? Glendon is careful to say in her conclusion that merely "refining the rhetoric of rights -- if such a thing could be done -- would hardly remedy all the ills that currently beset American culture and politics," but she insists that language, "with its powerful channeling effects on thought, is centrally implicated in our dilemma and in our prospects for surmounting it" (p.172). With Supreme Court opinions being distributed and discussed more and more widely through media accounts, Glendon argues that the justices have a duty more than ever to demonstrate judicial virtue in their role as pedagogues (p.155). It is her hope that opinions in the style of DUDGEON would have a trickle-down effect on the way the media and other opinion-leaders discuss rights, thereby leading to more widespread changes in our political community.

RIGHTS TALK is a timely book that artfully draws upon comparative law, political theory, and sociology to construct a thoughtful critique of our contemporary rights dialect. Through masterful storytelling and thoughtful argument, Glendon challenges us to rethink our conceptions of rights and the role of courts. This book is well worth reading and pondering and is particularly suited for clasxsroom discussion.