Rights Require Foundation

Ella Foskett

LSJ 381

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 The philosophies of liberalism tell us that as human beings we are all inherently endowed

with certain inalienable rights (Lecture 1). Ignoring the constraints society places on us, we are

all individuals with the autonomy to claim these rights for ourselves. In this sense, rights are very

real; we all possess certain rights because of the nature of humanity. However, just because we

all possess a right in theory, does not mean that everyone has the tools to exercise that right in the

given structure of a society. This does not mean that these individuals do not have or deserve

these rights, but simply that they have been disadvantaged to a point where they are unable to

claim them. This however does not invalidate the idea that all people possess rights, but rather

the legitimacy of the state charged with ensuring them. Because of disparities between rights on

the books and rights in practice, they are currently not a good method to provide individuals with

protections, however rights can be built up and supported in ways that would eventually ensure

their success.

The reality in the United States is that rights were originally defined to bar certain groups

from obtaining them. We have now “progressed” to have color blind law, which means everyone

may be legally defined as equal. However, there has been very little work done to address the

way in which the systems present in every facet of American life are built on values of racial

oppression that are very much still present today. When you build a society premised on certain

people having rights and others not, there must be significant work done to undo this hierarchy.

You cannot simply declare equality in the law and expect civil society to correct itself. There

must be significant work done and reparations given to undo the years of oppression that have

disadvantaged people to a point where they are unable to claim rights, even when legally given

to them. When a state defines its citizens as equally able to claim rights, they ignore the societal

implications that actually bar certain groups from doing so, therefore turning a societal issue into
an individual one. Brown illustrates this philosophy, stating, “It may be that the withdrawal that

rights offer, the unmasking or destigmatizing they promise, has as its cost the loss of a language

to describe the character of domination, violation, or exploitation that configures such needs.”

(Brown 1997, 121). As she explains, rights in definition from the state are not a valid avenue for

providing individuals with the protection they deserve. They provide empty promises that do not

address the historical realities that still very much impact individuals’ ability to interact with

society today, and they do not provide avenues to claim a right you are currently unable to. They

are empty promises from the state since they are unable to ensure equality and protection for

everyone. As Bentham would say, standing alone, rights are simply “nonsense built on stilts”.

While rights may be “nonsense built on stilts”, this is not to say that they are not

necessary for a functioning society. The problem is the way in which we are defining and

viewing rights, not their basic ideology. We must be able to define rights so that people know

what they have the ability to claim, but the work cannot stop at the definition. Defining

something as a right will never ensure that everyone is able to exercise it. Definition must be

accompanied by systems that provide every individual with an avenue for pursuing rights in

recognition of different starting places based on current and historical structural systems of

power. Who is defined as having rights under the law is far less important than who has the

ability to practice them in daily life. Keeping focus on the law may prevent people from noticing

the contradictions that exist and gives them a false sense of victory. Polletta depicts this ideology,

stating, “Rather than succumbing to the illusory freedom and equality promised by rights,

activists should demand that their ‘needs’ be met rather than their ‘rights’ granted. (Tushnet

1984)”. (Polletta 2000, 368). The focus for activists when claiming rights should be ensuring

tangible changes and progress, and it is only by focusing on these aspects of rights that we can
enhance their power and turn rights into a tool that does more than define empty promises. We

must raise our expectations of the state. No longer should we buy into the idea that the state has

successfully done their job when they recognize a right, we must hold the state accountable for

ensuring that this right is accessible to everyone regardless of identity, in order to call it a

success.

In addition to systems that allow all individuals to claim rights, rights definitions must be

supported by a shared societal consciousness that buys into them. Our government is a reflection

of our values as a society. The way in which we value and posit different identities in civil

society influences those who will have the power to create and monitor the structures that govern

society. In this way, the state and its oppression are a reflection of the way in which those with

power experience culture. Matua reflects this sentiment stating, “The state itself is a neutral,

passive instrumentality— a receptacle or an empty vessel— that conveys savagery by

implementing the project of a savage culture.” (Matua 2001, 203). The question in America is

not if individuals should have rights, it is which individuals should have rights. In order to

achieve a state that recognizes equality in practice, we must ask ourselves about the messages of

value civil society is giving us, and change these messages to reflect a true realization of equity.

As a society, we must collectively work to educate and reframe mindsets to teach compassion

and equality so that everyone may have their rights recognized both by the state and in civil

society. This happens in all facets of life and all societal cues we digest, however overt or hidden

they may be.

Changing the collective consciousness of civil society must start from an individual

recognition of oneself as being a rights bearing individual, despite barriers to practicing rights. If

individuals view themselves as not worthy of a right, there is no chance they will be able to
advocate for themselves to claim it. In order to claim and practice rights, you must know you

have them. In some cases this is as simple as learning that you have the right to do something

you previously did not know about. More often than not though, this process entails breaking

down deeply rooted societal beliefs and biases that have led individuals to believe they are less

deserving of their rights because of certain identities they possess. Osanloo depicts this ideology

through her studies in Iran, stating “…women’s increased petitions before the court in recent

years have contributed to their emergence as rights-bearing subjects with greater knowledge than

layperson of both the laws and procedural mechanisms involved in petitioning for divorce.”

(Osanloo 2006, 195). In Iran, women had the right to influence divorce court decisions,

something many women did not see themselves capable of due to a lack of knowledge about the

courts and a cultural belief that divorce was a male privilege. Once these women were told that

they did in fact have this right and power, they mobilized and advocated for themselves and were

able to actually claim it in practice. This then had the ability to affect other women who saw that

it was possible to do this and collectively shifted the way the divorce rights of women were

viewed. This process also serves to delegitimize the state and their definition of rights. When

individuals begin to claim rights for themselves, communities may realize that self definition,

and recognition as rights bearing subjects by peers is more powerful and effective in producing

tangible results than empty promises from the state. Polletta describes this, stating, “And

contrary to critics’ views of rights as dependent on the munificence of the state, black

Mississippians sought recognition of their status as rights-bearers from kin, community, and

congregation rather than from an intransigent state.” (Polletta 2000, 392). By focusing on self

recognition, civil rights activists were able to change the collective consciousness of the black

community to recognize their own worth and rights. This advanced the movement by making it
more visible and therefore empowering more and more black Americans to fight for and claim

the rights they now saw themselves as possible of having. This proved that people do still have

rights absent of state recognition and delegitimized the states power in controlling the definition

of who could claim which rights.

This necessary building of collective consciousness can also be seen as culture building.

Culture can be defined by “the sum ways of living built up by a group of human beings and

transmitted from one generation to another.” (Lecture 18). When trying to build up this

consciousness we must recognize the inherent difference in cultures and the fact that this

consciousness will look different in every arena in which it is deployed. This diversity is a key

characteristic of the kind of culture building that needs to happen. Rather than imposing western

ideals of what rights look like, existing values and identities should be built on to translate ideals

into something new that is applicable to the community in question. We are all victims of our

culture. The ways our ancestors lived have been transmitted to us. We have inherited their values

and ideologies and adapted them to our current world. In order to create change, we must

recognize the culture that is preventing us from doing so and build upon it to change the way we

realize and think about rights. As we have all inherited different values to undo and build upon,

this process must be tailored to the community it happens within and must happen organically.

Merry states, “… the adoption of rights consciousness requires a shift in subjectivity, one that

depends on wider cultural understandings and individual experiences.” (Merry 2006, 192).

Individual subjectivities will shift in response to rights consciousness building, cultural

understanding, and individual experiences. By starting from the bottom and changing the

mindsets of those who are most oppressed, we can influence the way people see themselves and

in turn the way society sees them. The more this happens the more it will be reinforced through
individual interactions and cultural adaptations. In this way culture building should stem from

current values and practices and adapt accordingly.

While rights are a very real ideology that recognize the autonomy and equality of

humanity, pursuing rights guarantees from the state will never be enough to provide individuals

with protection. However, this does not mean that rights are not valid or important, but simply

that we are thinking about rights in the wrong way. We tend to consider rights from a top down

perspective. They are privileges that the state has deemed us worthy of having, and it is through

the granting of rights that we get to practice them. Alternatively, a bottom up approach where

rights are seen as produced by civil society through culture would facilitate the creation of states

that not only recognize rights, but also ensure them equitably. Change must start from the most

disadvantaged people, they are the ones in the best positions to identity and rectify systemic

issues. By starting here and working to adapt their collective consciousness to make room for

rights claims making, we will begin to see spaces of self recognition and claiming rights for

oneself regardless of state action. The more this happens the more visible it will be to the rest of

civil society, and more and more people can begin to build rights consciousness and reconstruct

culture. Changing the collective ideologies of our communities will open spaces of empathy and

understanding so that more people can not only recognize their own worth and rights, but the

worth and rights of others with different identities. If we can build a culture built on values of

equity and empathy, these will trickle up into state action and we can create the meaningful

changes we need. This is not to say that the state and their definition of rights should be forgotten

and replaced by community definition, but that the definition of rights deployed within

communities should be applied to expectations of the state in guaranteeing them. In addition,

when the state treats individuals as endowed with rights, individuals are more likely to believe in
their own rights and claim their rights for themselves. Community definition must be codified by

state and societal action that reflects the given values. The focus needs to be on rights in practice

rather than rights in name. If we can collectively redefine how we see rights within our

communities to include both a place for everyone in society and tangible access to said rights,

then rights can become a productive tool to provide individuals with protection. Rights might be

built on stilts as they are now, but it is possible to build up the required foundation beneath them.

Works Cited

Brown, Wendy. Identity, Politics, and Rights: Rights and Identity in Later Modernity: . . .

.. revisiting the “Jewish Question”. University of Michigan Press, 1997.

Merry, Sally. Human Rights & Gender Violence: Translating international law into local

. justice. University of Chicago Press, 2006.

Matua, Makau. Savages Victims Saviors. Hein Online, 2001.

Osanloo, Arzoo. Islamico-civil “rights talk”. American Ethnologist, 2006.

Polletta, Francesca. The Structural Context of Novel Rights Claims: Southern Civil rights

Organizing, 1961-1966. Law and Society Review 2000.