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Chapter 14 Rights. Group H: Foronda, Fortune, Gerlach, Gicca, Gomez. Rights. 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.

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chapter 14 rights

Chapter 14Rights

Group H: Foronda, Fortune, Gerlach, Gicca, Gomez

  • 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.
    • 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!
  • Individuals may not always understand or know their rights, but they must be recognized by others.
    • 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
Types of Rights
  • Abortion
    • “Right to life” vs. “right to control one’s body”
  • Welfare
    • “Right to subsistence” vs. “right to dispose of one’s property as one wishes”
  • Civil, property, opinion, religion, legal
    • Intellectual and real rights
types of rights1
Types of Rights
  • Constitution
    • 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
Broad Traditions of Rights
  • Positive Tradition
    • 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
    • Harder to know whether a right exists.
    • Two beliefs
      • 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 rights1
Broad Traditions of Rights
  • Public policy
    • 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 rights2
Broad Traditions of Rights
  • Many reformers, advocates, and oppressed people often organize and rally behind the normative type of claim.
  • Example
    • 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
      • “We hold these truths to be self evident, that all men are created equal…”
how legal rights work
How Legal Rights Work
  • 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
    • People with disabilities call for a “right to work”
      • Now there is federal legislation that prohibits employers from discrimination based on disability
how legal rights work1
How Legal Rights Work
  • Procedural
    • 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 work2
How Legal Rights Work
  • Substantive
    • Goes beyond procedure to specific actions or entitlements.
    • Negative
      • Right to do something free of restraint.
      • Right to free speech, assembly, religion
    • Positive
      • 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
How Legal Rights Work: The Magistrate
  • Civil rights strategy paradox
    • 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
The Magistrate
  • Statutory law
    • Making a new law or amending an old one
  • Administrative law
    • Broad rules that will apply to a society and implemented by administrative agencies
  • Common law
    • Decisions of judges as they resolve disputes
  • Constitutional amendment
    • Most difficult, but does not stop individuals from trying
the magistrate1
The Magistrate
  • Grievance Process
    • Litigation
      • From the disputing parties’ point of view
    • Adjudication
      • From the judge’s point of view
  • Two opposing parties
    • One claiming right denied
    • The other alleged to have denied the right
  • To be hear by neutral third party
    • Conduct dispute through reasoned argument, rather than through force, exchange of money, or emotional appeals.
    • Is this always the case?
the magistrate2
The Magistrate
  • Enforcement Mechanism
    • 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
where do people get their ideas about rights
Where do people get their ideas about rights?
  • Official Statements
    • Constitution, Statutes
  • Civic Education
  • Moral Philosophy
  • Principles of right and wrong
    • Religious texts
    • Rational arguments
    • Public opinion
    • Social practices and institutions
  • This disjunction between moral rights and legal rights drives the whole system of rights-claiming.
what propels people into courts
What propels people into courts?
  • 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
no judges appeal to moral ideas and norms
NO - Judges appeal to moral ideas and norms
  • 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
    • 19th century tort law with industrialists vs. contemporary tort law and new technology
how do judges justify their decisions
How do judges justify their decisions?
  • They often say they are only doing what “civilization” or “public interest” or “standards of decency” or “our complex modern society” requires
  • Example
    • 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
Departing From Old Precedent
  • 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
Description of Law
  • 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
The Political Basis of Legal Rights
  • In theory
    • 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 rights1
The Political Basis of Legal Rights
  • In the polis
    • 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
      • These different players have different resources to use in legal contests and different goals in settling disputes
concentrated vs diffuse interests
Concentrated Interests

Parties who use courts often in their everyday affairs

“Repeat Players”



Insurance companies



Diffuse Interests

People who use courts rarely or sporadically




Policy holders


One-time delinquents

Concentrated vs. Diffuse Interests
repeat players
Repeat Players
  • Have low stakes in the outcome of any one case and greater stakes in maintaining an overall position of strength
    • 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
  • Have an intense interest in the case because the outcome will affect their lives profoundly
    • 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
Competing Interests
  • Disputes between repeat players
    • Unions vs. Employers
    • Regulatory Agency vs. Regulated Firms
  • Disputes between one-shotters
    • Divorce Cases
    • Neighborhood Disputes
  • Disputes between repeat players and one-shotters—majority of legal contests
    • 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
Structuring of Disputants
  • The conscious structuring of disputants happens in many ways
    • “Ideal” individual as plaintiff
      • NAACP handpicked plaintiffs in most of the civil rights cases of the 1950s and 1960s
    • Organization or several organizations as plaintiff or defendant
      • Trade unions play an active role as plaintiffs in disputes over occupational safety and health legislation
    • Class action suit
      • Consumer product liability suits
  • Judges and disputants worry about whether an organization or class is truly representative of the plaintiffs it purports to represent
  • Strategies of legislative politics
    • Stacking the plaintiffs
    • Ticket balancing
  • Both strategies broaden the normative appeal of a position
do rights work
Do Rights Work?
  • Rights ‘work’ by mobilizing new political alliances, transforming social institutions, and dramatizing the boundaries by which communities are constituted
    • 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
Public Law Litigation
  • Aimed at changing a whole systematic pattern of practice in a large area of public policy
    • 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
Critique of Rights
  • Conservative
    • American society too generous with rights
      • Entitlements undermine people’s willingness to work and their drive to self-sufficiency, and ultimately lower the productive potential of the nation
  • Liberal
    • American rights are under-developed
      • Rights are too fragile and don’t include affirmative rights to subsistence and security
  • 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