VOL.6 NO. 6 (July, 1996) PP. 112-117
IDENTITIES, POLITICS, AND RIGHTS by Austin Sarat and Thomas R.
Kearns (Editors). Ann Arbor: The University of Michigan Press,
1995. 439pp. Cloth $65.00. Reviewed by Adelaide H. Villmoare,
Department of Political Science, Vassar College.
This volume, the fifth in the Amherst Series in Law,
Jurisprudence, and Social Thought edited by Sarat and Kearns, is
often unexpectedly optimistic. While all of the eleven articles
have a decidedly critical edge and some are notably more
discouraging than others about prospects for rights politics, the
book as a whole seeks out possibilities for progressive politics.
From Drucilla Cornell's first article on re-envisioning identity
and abortion rights to Bruce Ackerman's last one trumpeting a new
beginning for American revolutionary spirit many chapters of this
book are energetic and hopeful. Others warn of the constraining
character of identities and politics caught up in rights. An
implicit, lively dialogue about how optimistic one should be
about the nexus of identities, rights, and politics runs through
the two sections of the book, "Rights and the Constitution
of the Self" and "Rights in Political Struggles."
The intellectual process resulting in this book did not
necessarily begin with any hopeful visions of identities,
politics, and rights. The essays were first presented at Amherst
College in 1992 at a conference entitled "The Paradoxes of
Rights." While the editors do not describe what themes were
suggested to the conference participants beyond the title, they
say in their introduction that the volume examines two central
assumptions of liberal theories of rights: that rights bearers
are individual human beings sharing universal and ahistorical
attributes and that "rights stand outside of, and above,
politics" (p. 2). Given the various critiques of rights in
professional and popular publications and unsettling events in
world politics, one could well imagine that a collection
addressing liberal assumptions about rights, contradictions of
rights, and promises (or lack thereof) of rights politics might
wind up being dominated by pessimism.
The essays are diverse in approach and topics, but most directly
examine issues of identity. One wonders how this particular focus
emerged from an initial consideration of the paradoxes of rights.
Further explanation from the editors would have filled in the
particular history of this project and elucidated the analytic
connections between the conference and the book. Still, Sarat and
Kearns do explain that this focus stems from recent work
recognizing the contingent and constitutive nature of rights,
which turns to questions of rights subjects and identities. The
identities at issue in these articles range from those of women
in the context of abortion, to historical and contemporary groups
or "tribes" in South Africa, to women and men involved
in wife battering cases in Hawaii, to American political culture,
to nationalism of the kind driving politics in eastern Europe
today.
Tied into issues of identity are questions of the emancipatory
potential of rights talk and politics. Attuned to historical
particularities and diversity in subjectivities, the essays
differ in their appraisals of rights. Some are more pessimistic
and cautionary than others. Sally Merry's assessment of the
isolation of women resulting from courts' Page 113 follows:
cultural production of rights in battering cases concludes that
rights offer a narrow vision of change at best, one that
reinforces individuality and neglects larger socio-economic
forces in society. Hers is a discouraging picture at best. Others
are more hopeful. Elizabeth Kiss, for instance, shows that ethnic
nationalism is not intrinsically incompatible with human rights
and that democracy can, in particular circumstances, foster
stable, national communities. Her essay permits the imagining of
a more stable and democratic eastern Europe. Overall the dialogue
identities, rights, and politics offers heartening intellectual
and political challenges.
Drucilla Cornell's powerful first chapter cuts an uncompromising
path through the entanglements of abortion rights debates as she
argues against any state restrictions on abortion and for social
programs to promote safe abortions. Rejecting a liberal
understanding of individuality and views about abortion as a
matter of choice, she argues that "we should defend the
right to abortion as a matter of equality" (p. 25) and that
"we need a theory of equality and of right based on the
protection of minimum conditions of individuation" (p. 26).
For Cornell individuation or selfhood requires the right to
bodily integrity and to women's having the narrative power over
their own decisions. To "deny women the right to have an
abortion is to deny them equal protection of the minimum
conditions of individuation" (p. 59). Women must control
their bodies, and they must be the determiners of the meaning of
their acts; only then will they achieve the "status as equal
persons capable of moral judgment" (p. 72). Cornell's
article reaches beyond the abortion debate as she recasts
arguments about women's rights and equality and inspires her
reader to believe that there are both new ways to consider old
problems and new symbolic orders (p. 77) we can construct not
only around abortion but other gender issues as well. Her article
sets an intellectually encouraging tone for the volume.
Examining the relationship between the general and the particular
and the abstract and the concrete, Wendy Brown introduces a theme
which engages several of the authors. Brown rearticulates Marx's
criticisms of liberal rights as she asks about the
"consequences of installing politicized identity in the
universal discourse of liberal jurisprudence" (p. 86). She
draws on Marx and Foucault to put questions to Catharine
MacKinnon and Patricia Williams, both proponents of progressive,
situated rights politics. Agreeing with Marx, she fears that
particularized identities installed in rights promise more
dangers than gains: "rights are more likely to become sites
of the production and regulation of identity as injury than
vehicles of emancipation" (p. 130). If rights offer any
political promise it is through their idealism, in their appeals
to equality, rather than in concrete expressions. Brown's is one
of the more cautionary articles in this book. One wonders what
might emerge from a direct interchange between Brown and Cornell.
Jane Gaines and Kirstie McClure analyze the historicity of
rights, albeit in contexts very different from one another.
Gaines portrays Andy Warhol -- as celebrity -- as the embodiment
of the meeting of copyright and the "right of
publicity" (p. 134). In an analysis of law and popular
culture, she points Pagge 115 follows: out the "vacuity of
property rights" (p. 148) in an age where celebrity, based
on marketable images and the circulation of publicity, becomes a
property right. Mass culture and law produce historically
specific meanings for property rights which help sustain both the
emptiness and appeal of celebrity.
In order to imagine new forms of rights and the possibility of
democratization, McClure utilizes and qualifies Foucault's
perspective on the subject of rights and the
"sovereignty-discipline-governmentality triangle." In
particular she describes the characterizations of rights subjects
as they appeared in the political and polemical writings in Great
Britain at the turn of the nineteenth century. Her reading
demonstrates that rights language is "polyvocal and
polyvalent" (p.164) and that the "subjects of rights
[are] neither wholly at odds with nor wholly subordinate to the
constellation of discursive practices triangulated by Foucault as
'sovereignty-discipline-governmentality"' (p. 188). Not a
naive optimist, she nonetheless shows subjects of rights making
spaces for democratization.
More empirical than the philosophical Cornell, Brown, Gaines, and
McClure, John Comaroff writes the most moving piece in the book
when he analyzes identities and rights as cultural forces of
colonialism and of resistance to colonialism in South Africa. In
the everyday politics of creating new subjects and new
subjectivities the colonizers' discourse of rights "loomed
... large" (p. 197). The discourse of rights had two
registers: "radical individualism" and "primal
sovereignty" (p. 198). These played out in contradictory
ways that can still be seen in the political divisions of the
African National Congress, more imbued with liberal
individualism, and the Zulu-centric Inkatha Freedom Party, more
"ethnonationalist in tenor" and born from the politics
of primary sovereignty (p. 233).
Missionaries created "tribes" where none existed before
-- new identities were forged, and these new identities became
legal and cultural forces for and against colonialism. Having
created ethnic identities among the indigenous populations who
then claimed rights based on those identities, the colonizers
proceeded to deny rights to those ethnic groups -- their new
ethnic identities had to be erased before these people could be
modern, rights bearing subjects. Weapons against them, rights
were also used by black South Africans to challenge and resist
white supremacy. As Comaroff concludes, "the inherently
contradictory character of the colonial discourse of rights ...
ensured that it would be engaged on both sides of the dialectic
of domination and defiance" (p. 236). Comaroff's sobering
analysis of the role of rights in oppression is tempered by his
recognition that at particular moments of cultural and political
history rights may be turned back against oppressors.
Richard Abel's article begins where Comaroff's leave off -- with
rights use in contemporary South African politics. Illustrating
that law is more effective as a shield than as a sword, Abel
analyzes ten cases to show the variety of ways law figures in
resistance struggles. He writes that "the opposition won
victories in court they could not win elsewhere" (p. 257).
Still, law makes a difference but "rarely changes
policy" (p. 251). Abel eschews general theoretical
statements Page 116 follows: about law's promise because it is
only in its particularities, in specific historical and cultural
contexts, that we can assess its political worth. But his
analysis is far from a dismissal of rights and law as
insignificant or necessarily counter-productive to progressive
politics.
Sally Merry is much more skeptical about rights' impact on large
political forces. She finds that the rights discourse surrounding
wife battering cases in Hawaii does contribute to a new gender
consciousness, where men "are stripped of some of the rights
of male authority" (p. 272). The new consciousness, however,
is "inevitably individualizing, reinforcing the idea that
the woman alone is responsible" (p. 305). Following Brown's
Marxist analysis, Merry contends that rights are abstract,
ahistorical and avoid engagement with socio-economic structures
and forces. Merry's is the most discouraging voice in the book.
Following along the line of rights as cultural artifacts, Steven
Shriffin contends that the First Amendment lies at the heart of
American political culture and identity and that the central
meaning of the First Amendment is a commitment to dissent.
Examining flag burning and art censorship, he argues that these
issues are cultural conflicts about the role of dissent in our
society. The "citizen-critic" is essential for
democracy (p. 319), and "the commitment to dissent and the
First Amendment is of national symbolic value: it has a form of
cultural glue that binds citizens to the political
community" (p. 330). "Fueled by the idea of substantive
equality" (p. 344), dissent energizes politics and reaffirms
core meanings of American democracy. In Shriffin's eyes rights
and dissent sustain and drive American democratic culture.
Martha Minow, in what appears in this article to be a puzzling
turn away from her other work challenging us to imagine new
meanings of rights, strikes another cautionary note in the book.
Her fear is that rights over-emphasize unity. Echoing certain of
Comaroff's and Merry's concerns, she says that "the very
willingness of historically excluded groups to use rights
language actually draws them into the process designed by the
dominant group and thereby advances the unity that group
seeks" (p. 353). Rights authorize unity over interests and
practices of subcommunities or dissenting individuals. Her
outlook is bleak.
Elizabeth Kiss deals with a world where the absence of unities
fostered by rights may give her a perspective different from
Minow's. Troubled about the "specter of violent and
exclusionary nationalism"(p. 367) especially in Eastern
Europe, Kiss argues that ethnic nationalism and human rights are
not necessarily mutually exclusive; human rights "can
acknowledge, among shared human aspirations, the creation and
preservation of communities, including nations" (p. 378).
Indeed in particular circumstances, human rights and nationalism
can together work to construct stable political communities.
Rearticulating Shriffin's perspective, she believes that
democratic political culture can be a "constitutive element
of ... nationalism" (p. 395). She pleads for us not to
oversimplify the relationship between national identity and human
rights, to "balance the universal and the particular,"
and to "imagine new communities that encompass old
enemies" (p. 401). Pagd 117 follows: Her article takes a
first step toward such imagining.
In the concluding chapter Bruce Ackerman also challenges the
political imagination. He urges Americans to see the spread of
"revolutionary democratic liberalism" in the world as
an opportunity to "reinvigorate our own sense of
identity" (p. 403). We need self-conscious, energetic yet
peaceful mobilization to press for changes in basic principles
and practices (p. 405) that nonetheless remain liberal at their
core. The basic principles would retain the marketplace but
render it more genuinely equal. He believes that now is the time
to overcome the unjustified, neo-conservative "skepticism
about the possibility" of political and social change (p.
415), to find common ground (p. 417) and undertake a new,
liberal, democratic revolution.
The book begins and ends with challenges to the political-legal
imagination --perhaps it is the confidence in such imagination
that conveys optimism. The appeal to the imagination, however, is
grounded not in an abstract idealism but in the significance of
everyday intersections of particular identities and law. While
all the authors write about law and rights in historically
situated contexts, the more optimistic side of the dialogue moves
beyond understanding rights as universal categories that lock
people into making claims as abstracted individuals or others.
The more pessimistic articles attribute to rights a rather
unchangeable universalism which denies or negates particular
identities, socio-economic forces, and resistant practices. To
rephrase Ackerman, perhaps now is the moment to test our
political imaginations, to create identities and rights in
support of progressive politics. If so, this book provides a rich
source for some of the debates to which a rejuvenated political
imagination should attend.