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Robin West, Tragic Rights: The Rights Critique in the Age of Obama, 53 Wm. & Mary L. Rev. 713 (2011), available at SSRN.

No one talks about what is wrong with rights anymore.  Rights critique, suggests Robin West, has been on a sharp decline since the 1990s and has been particularly muted under current American administration.  This silence, West argues, is both strange and undesirable.

While she offers some hypotheses to explain these observations, West’s focus is not a post-mortem on the critical rights movement of the 1980s.  Instead, and put simply, her aim is to reinvigorate the rights critique in light of both current political, social and economic context and the ways in which rights claims are currently being configured in response to this context.

West reopens conversation on “rights’ wrongs” not with a concern for the ways in which legal liberalism’s rights granting machine perpetuates subordination and alienation in the name of protecting supposedly free and equal citizens from an intrusive state.  Instead, West targets what she identifies as the new rights bearing character and its new state foe.  Indeed much of her framing of this new rights critique is articulated in juxtaposition with, although not direct contrast from, rights critique of the 1980s.

Focusing on claims for the right to marry, the right to resort to violence in self-defence, and the right to home schooling, West suggests that contemporary arguments for rights can be characterized as rights of withdrawal or exit rights from “the social compact with an incompetent, sub-minimal state”.  Claimants advance the right to home schooling on the basis that publicly funded education is inadequate.  Same sex couples claim the right to marriage in order to access financial benefits and securities the state won’t provide to single individuals.  In the age of Obama, the rights claiming character is constructed as a heroic sort pitted against the tragedy of our failed community. The state cannot or will not protect the hero from crime and so he must have a gun to protect himself.  The state cannot be trusted to redistribute wealth through taxation and so the hero must do so at church.  As with the right to liberty and autonomy, rights of withdrawal do not result in the social renovation necessary to address systemic injustices like poverty.  In this sense, West offers a new way of articulating and analyzing the injustices identified by 1980s critical legal studies scholars.  However, she adds to this a concern regarding the way in which today’s rights claims impact our sense of civic responsibility and obligation.

Hers is not a critique of rights as a concept, nor of the value of pursuing dignity and equality, nor of individual rights (to abortion, same sex marriage, home schooling…).  It is a critique of the new relationship between the state and the individual and of the way in which today’s rights claims promote withdrawal and perpetuate our failed obligations to one another.  She offers an astute observation of the insights current rights claims reveal about us as a dilapidated community, or what West describes as a shattered state.  “The tragedy of these rights of withdrawal is not just the lethality that follows in their wake. It is also the horrifying, yawning chasm where a civic society, a community, and state could once be found.”  We are the state she suggests and thus, her critique is of us as sovereign citizens.  In her powerful conclusion, she calls for a reactivated citizenship and a discourse which recognizes our obligations to support and assist one another.  “If we believe that protection of citizens against violence, education of children, assistance with health and child care, and provisions for persons in abject poverty are basic state functions, then citizens, as the sovereigns from whom the state draws its power, must support and fund these state functions.”  Instead of turning to courts to advocate for rights to withdraw from a dysfunctional and incapacitated, if not malignant, state, we as sovereign citizens need to support through our taxes and our labour these public functions.

Not all readers will agree that the legal academy of the new millennium is devoid of rights critique.  Queer legal theorists have developed quite a fulsome critique of the gay and lesbian movement.  Regardless, West’s piece provides us with a new framework to think through the failings of an approach to social justice that is so heavily reliant on assumptions about rights’ rights.  The most compelling and discomfiting aspect of this work is that to embrace her framework of analysis, to reinvigorate a rights critique along the lines she suggests, creates also a moment to acknowledge individual responsibility for our failed community.

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Cite as: Elaine Craig, Heroes, Tragedies, and Our Failed Community, JOTWELL (March 16, 2012) (reviewing Robin West, Tragic Rights: The Rights Critique in the Age of Obama, 53 Wm. & Mary L. Rev. 713 (2011), available at SSRN),