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.