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RightsReview - Rights
A Critical Introduction
by Tom Campbell
Routledge, 2006
Review by Kostas Koukouzelis, Ph.D.
Feb 27th 2007 (Volume 11, Issue 9)

To my mind, there remains no doubt that we live, for the better or worse, in the so-called 'Age of Rights', and that the trend to evaluate all moral, social, economic and legal reality in terms of rights is wildly expanding day after day. Tom Campbell's book claims to be introductory in our understanding of the concept of rights and to a certain extent it is, but for a careful reader there is also a full-blown legal and political theory developed here. And it could not be otherwise, since in Campbell's theoretical honesty and in opposition to descriptive legal positivism, there is no morally neutral way to analyze the concept of rights (22). Campbell's analysis starts with a 'mountaineering expedition' on rights-based approaches and reaches its peak with the theory of 'democratic positivism' that supports his own point of view of the subject-matter of the book. His intellectual debts vary from the Brazilian philosopher Roberto Unger to the recently passed away feminist political theorist Iris Marion Young, although the debt to the prescriptive legal positivist and utilitarian Jeremy Bentham is more than obvious.

Starting from what Campbell explicitly tells us, the aims of the book can be summarized into two mainly points: First, he is interested in making clear the distinctiveness of the concept of rights from other normative concepts such as right, justice and duty. Rights are a form of legitimate political demand that requires establishing and maintaining certain social and legal mechanisms (xiii). Second, his approach seeks 'to promote a vision of rights that is best suited to current domestic and political problems' and forms a significant part of his larger and all-inclusive project of a general political theory called 'democratic positivism' (ibid.). We will see in the end what such a project means and how it influences what Campbell has to tell about rights. But we'd better focus on the thesis of the book, a thesis that would provide us the challenge Campbell is raising against traditional or modern natural law theories of rights. Struggling for the best articulation of his distinct normative thesis he is arguing that '[r]ights are, at base, best seen as morally justified demands for establishing and maintaining socially secured entitlements...the distinctiveness of rights relates to...the institutionalization of the moral commitment to equal worth' (xiv). Let us then see how Campbell tries to flesh this out and whether he succeeds in fulfilling such a task.

The book is divided into four parts. Part I, which is called 'The Discourses of Rights' explores the moral and the legal modes of rights discourse. Crucial to any account of rights is of course the history of the concept and its acquired reputation nowadays. This is what is being demonstrated in chapter 1. For example, Ronald Dworkin talks about 'rights as trumps' and Rawls gives them a 'lexical' priority in his theory of justice, both stressing the fact that they take priority over general utility or conceptions of the common good. Additionally, rights express the equal worth of all human beings, which means that they have universality. And universality offers security among other things. Nevertheless, Campbell wants to claim that rights are not universals of any kind, but take their content from historically situated problems. In any case, the reputation rights have acquired must be checked against four main criticisms addressed towards them and their defenders: the critique that they only express human beings' egotistical nature, the critique that they promote our adversarial nature and prove in the end to be quite legalistic, the critique that rights can be absolute and thus dogmatic and inflexible, and last, the critique that, in practice, rights can be elitist rather than egalitarian. Throughout the book Campbell makes a good effort to address these criticisms.

In the subsequent chapters 2, 3, 4 Campbell describes rights by using critically theories of their categorization and typology (Hohfeld typology), and of the nature of their grounding on human will or interest, opting for the latter choice, a mark of his empiricism. Chapter 4 particularly, offers us an overview of how different theories of justice express their commitment to rights. I do not feel comfortable with the use of the expression 'Political ideologies and their rights' as the title of the chapter, for it is one thing to treat rights as part of political ideologies and another to treat them as part of theories of justice. Ideologies compete with each other in terms of political power, whereas, theories of justice compete with each other in terms of 'truth', i.e. the best version of justice. But let us leave this aside for the moment.

Part II is entitled 'The Institutions of Rights' and it examines the several modes by which rights are protected and made effective. It is of the essence of rights discourse that it calls for institutional embodiment, in fact, no social actualization entails, according to Campbell's theory that rights remain just fictions or, as he likes calling them, 'manifesto rights'. Chapter 5 involves legal rights at domestic level. After that he proceeds to the international protection of them (ch. 6) and their place in civil society (ch. 7).       

In Part III, under the title 'Three Human Rights' Campbell is providing us with a lot of help in our way to understand the historical development of the different generations of rights. In order to do that he is also providing us with three examples of rights: freedom of speech, sustenance, and group self-determination. These examples follow respectively the historical stages of human rights (the first generation of rights), socioeconomic rights (the second generation) and group and environmental rights (the third generation). An analysis of the moral and political justification of the freedom of speech, either consequentialist or deontological, provides us with a good example of a right of the first generation. Campbell stresses the fact that, even in such a case of a negative right, there is more to the positive and distributive aspect of it, that is, the government's obligation to provide the means to the equal access to communication (154).

On the other hand, the right to sustenance makes us realize the stakes of the socioeconomic rights today. In discussing the foundation of socioeconomic rights as human rights Campbell focuses on the concept of 'basic needs', which, for some people, remains an unacceptably empirical basis (159-163), but he does not refer to Amartya Sen's concept of 'capabilities', which promises much more. Nevertheless, what is of absolute importance here is the nature and identification of the correlative obligations for providing the material means for the satisfaction of this right. The state is of course the usual agent of justice here, but the real problem comes with the realization that there are also weak states and enormous world poverty. In the international context one cannot be sure of who has the duty to provide the means for the right to sustenance and how much. The discussion is illuminating and very helpful in developing a theory of correlative duties indispensable for every theory of rights. Are the correlative duties based on a principle of humanity and thus become a form of charity or of justice? Campbell concludes with an effort to argue for a right that carries along with itself the crucial obligation of civil society (in the form of various 'agents of justice' such as non-governmental organizations and large corporations) to instantiate a global right to sustenance.

The third example (chapter 10) comes from the right to group 'self-determination'. Such a right seems to be particularly relevant to the existing political situation. First and foremost it pertains to the status and problems present in contemporary multicultural societies. Minorities, religious, linguistic, but also ethnic, groups have special interests that need to be protected. Can they be translated into the language of 'collective rights'? This is one of the most hotly debated issues in recent theory and human rights practice. The French population in Quebec demands independence, and the indigenous populations claim special rights.    

The very last part (IV) of the book, together with chapter 11, both summarize and propose a theory. 'Democratic positivism' claims, according to Campbell, that rights are a human invention, a claim, which denies that they exist prior to social institutions. This form of human invention can be filled and institutionalized in law and social morality to serve the purposes we choose. This is, as we mentioned at the beginning a general political theory which is composed of two key concepts. First, it is 'positivistic' in emphasizing the huge importance of having in place rules embedded in social institutions. Campbell is much influenced by legal positivism (closer to the old Benthamite strand rather than H.L.A. Hart's modern version of it) and he has developed his own theory of 'ethical legal positivism' in his 1996 book under the same title. Second, it is 'democratic' in the sense of stressing the ethical need for agreement and social dialogue, in other words, for a democratic process that determines the content of rights.

More to the point, the positivistic component, on the one hand, demands that the question of 'what rights do we have?' must be distinguished from 'what rights ought we to have?'. This is something that Campbell defends fiercely throughout the book (28-30, 196, 204-206). Rights presuppose rules and rules have a kind of 'social existence', thus it is an unacceptable metaphysical (neo-Platonic) commitment to think they exist independently of social recognition and embodiment. Instead the rights we ought to have enjoy only the status of 'manifesto rights'. But one can simply wonder: why struggle about something that does not exist in the first place? The democratic component, on the other hand, carries along with it more problems than solutions. For example, Campbell thinks that the commonplace assumption that rights protect minorities from majority's temptation to oppress them, and thus oppose democracy, does not cast doubts to his conceptions of both rights and democracy. Ironically, he thinks that it would be preferable not to think of rights as counter-majoritarian devices (199). Furthermore, he thinks that making courts a kind of guardians that, through judicial review, have the power to check the legislature, is like surrendering the polity to a non-elected minority. One might wonder about what kind of a theory regarding the separation of powers Campbell has in mind, given the revival of jurisprudence about this fundamental institutional principle in the US lately. It seems to me that, overall, his approach is too empirical, and empiricism cannot provide help about the 'paradoxical' connection between rights and democracy.         

Nevertheless, in the end, Campbell admits that systems of rights may indeed disproportionately benefit certain legal and economic elites -- the objection from elitism at the beginning of the book -- but any hope of attaining a more egalitarian society requires again a system of rights, both at a domestic, and at a global level (especially there) (203). Furthermore, securing rights is not just a matter of passing positive laws, nor is it a matter of enforcing them, but it requires in addition the availability of resources (but is this something that goes beyond a theory of rights, remaining only at the level of empirical politics?). Consequently, the acknowledgment of these last two circumstances constitutes, whether one finds oneself in agreement with his 'democratic positivism' or not, the important contribution of Campbell's critical introduction from which students of law, philosophy and political theory will benefit enormously.

 

© 2007 Kostas Koukouzelis

 

Kostas Koukouzelis, PhD, Philosophy Department, University of Patras, Greece


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