Sunday, March 11, 2007

In Defense of Legitimate Rights

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Among other fascinating points, Professor Glendon maintains that there has been a peculiarly American tendency to exaggerate two rights, to the detriment of others:
* "From the very beginning, the absoluteness of American property rhetoric promoted illusions and impeded clear thinking about property rights and rights in general" (p. 25).
* "Though the 'preferred' rights change from time to time, American legal discourse still promotes careless habits of speaking and thinking about them....exaggerated absoluteness of our American rights rhetoric is closely bound up with its other distinctive traits - a near-silence concerning responsibility, and a tendency to envision the rights bearer as a lone autonomous individual....why does our rhetoric of rights so often shut out relationship and responsibility, along with reality?" (pp. 41 - 46)
* "The major impetus for recognizing a legal right to privacy was the invention, in the nineteenth century, of instantaneous photography, and the development of rapid means of communication....In 1973, the Supreme Court of the United States held in Roe v. Wade that the...right of privacy was 'broad enough to encompass a woman's decision whether or not to terminate her pregnancy'....In the abortion cases that followed and enlarged the scope of Roe, privacy began to show the same thrust toward absoluteness that had characterized property rights in an earlier era....In the United States today,...poor, pregnant women...have their constitutional right to privacy and little else. Meager social support for maternity and childraising...leave such women isolated in their privacy" (pp. 49 - 65).

One section of Professor Glendon's book is reminiscent of the final episode of "Seinfeld," where Jerry and friends are prosecuted for failing to come to someone's aid:
* "Our habitual silences concerning responsibilities are...apt to remain unnoticed....the authors of the leading treatise on torts categorically declare that one has no legal duty to come to the aid of another person in mortal danger....An Olympic swimmer out for a stroll walks by a swimming pool and sees an adorable toddler drowning in the shallow end. He could easily save her with no risk to himself, but instead he pulls up a chair & looks on as she perishes. When beginning law students learn that the despicable athlete was perfectly within his legal 'rights,' their reaction is generally one of surprise and disbelief....In a long line of decisions, bystanders have consistently been exempted from any duty to toss a rope to a drowning person, to warn the unsuspecting target of an impending assault, or to summon medical assistance for someone bleeding to death at the scene of an accident" (pp. 76 - 79).

Professor Glendon's preface could well have served as the conclusion:
* "A near aphasia concerning responsibilities makes it seem legitimate to accept the benefits of living in a democratic social welfare republic without assuming the corresponding personal and civic obligations....what is needed is not the abandonment, but the renewal, of our strong rights tradition....The prospects for such a project are not especially bright....the seedbeds of civic virtue (as many political theorists refer to families, religious communities, and other primary social groups) are not in peak condition" (pp. xi - xii)

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