Ruling by Rights: Rule Making and Embedded Normativity

Clifford Bob’s Rights as Weapons offers a gripping description of the manifold ways people use rights-claims to attain strategic goals. In addition to using rights-claims to expand freedom and prosperity, Bob demonstrates they can also be deployed as “camouflage” or “dynamite,” in the service of narrow interests or to play groups against one another. The goal of an appeal to rights is, at the most basic level, to change practices such that others conform to what the advocate deems appropriate behavior. The political battle—with the language of rights serving not only as a weapon, but also as an ethical-moral dimension of the discursive topography of the battlefield—is frequently over legislation and regulation. Formal institutionalization of rights, in turn, creates enforceable rules governing social and political practices favorable to the party making the appeal. Of course, the existence of rules does not guarantee they are followed in practice, or that they are interpreted in a manner consistent with the vision of their authors. Successful rights-claims must therefore change norms as well as laws. If we think of norms as social rules governing appropriate conduct, a requisite corollary discussion to any analysis of rights tactics includes a closer look at the social processes through which such rules are made. Along these lines, I would like to suggest several thoughts concerning rule-making, norms, and rights-claims.

First, it is necessary to consider norms in order to account for how rights advocates understand, value, and order their strategic goals. Consider the difficulty of creating an enduring alliance between suffragettes and black rights activists in postbellum America. The impulse to argue in favor of white women’s voting rights as a bulwark against newly enfranchised black men in the South resonated with many Southern suffragettes because they shared normative commitments to certain kinds of white supremacy. Despite being an abolitionist, for instance, Elizabeth Cady Stanton proved willing to sideline black women in order to deny the vote to black people writ large.¹ Attempts to ally with white men who held the keys to the ballot box were not uniformly strategic gambles to improve chances of victory. For many activists, they reflected (and reproduced) deeply ingrained racist beliefs. Strategic decisions are imbued not only with calculations about the likelihood of success but also with the scope of an advocate’s desired substantive gains. Context-specific social norms impregnate such considerations. Bob largely leaves questions of norm construction, reproduction, contestation, and evolution to future scholars. Such research may help us understand how rights discourses can become salient around issues only newly described in such terms (for example, American progressive activists have recently and increasingly used rights language to push for access to free college and healthcare).

Second, and relatedly, Bob is right to juxtapose the use of specific rights-claims with broader equality and democracy norms.² The wide popularity of these latter norms may cause illiberal movements to mask their intentions in language that aligns with dominant liberal discourses. Hiding behind liberal values while undermining them from within is, in fact, a well-documented tactic of extremist movements. Through this lens it is difficult to observe the current state of global affairs—with democratic institutions under siege in countries such as Brazil, Hungary, Italy, Turkey, and the United States— without getting the sense that the authority of liberal norms is being challenged. Are the very tactics examined by Bob—such as camouflaging, blockading, wedging—contributing to global liberal decline? The plasticity of meanings and uses of rights claims seems to constitute a weakness built into the foundations of the liberal system. Within debates over contentious oppositional rights-claims rests the potential to undermine the structures of governance that purport to legitimately adjudicate such claims with the larger nominal goal of advancing human wellbeing. Moreover, the use of rights tactics to deny, delay, or reverse protections sought by marginalized people demonstrates the instability and contingency of norms. A close reading of Bob’s argument suggests norms should not be viewed as discrete objects with clearly demarcated content, but as constellations of flexible, shared expectations of what constitutes appropriate conduct, that vary depending on how, when, and by whom they are instantiated in practice.

Third, Bob argues that inter-group relationships, historical animosities, and identitarian battle lines are merely post hoc rationales that reflect on, rather than drive, a movement’s tactical decisions. Decisions are, instead, driven by a “quest to achieve desired rights and their substantive ends.”³ But how does a movement come to understand its goals if not within the context of its history of alliances and enmities, and—most critically—its members’ understanding of what makes one belong to the group? Consider the book’s empirical vignette about the contentious debate on transgender inclusion in the British Labour Party’s gender quota system. I would argue that blockading transgender women from the party’s gender quotas should be understood partly in terms of particular rules of gender belonging. If the radical feminist argument is that an individual is a woman only insofar as she meets certain non-subjective criteria against which claims of womanhood are adjudicated—having been born with certain biological features—it follows that belonging is determined by a judgment as to whether the rules of membership to the group are being obeyed. Those who align with the rules belong; or, as Judith Butler describes this point of view, “the qualifications for being a subject must first be met before representation can be extended.”⁴

Queer theorists who articulate a trans-inclusive variety of feminism typically challenge the viability of such rules by contesting the premise that gender claims can be externally adjudicated by reference to non-subjective criteria (to draw on Butler again, doing makes the doer). In practice, by allying themselves with the experiences of cisgender women—suffering violence at the hands of cisgender men, as well as systemic subjugation and exclusion—many trans women appeal to a different set of (subjective) criteria against which womanhood might be decided. Accordingly, to be a woman is not to decide that one is a woman, or to be born with certain physical traits, but to live and experience as a woman. They transplant one set of rules for another, bargaining that the latter better resonates with potential allies and effectively blocks potential foes, but also firmly believing in the substantive prescriptions of their criteria. Far from being merely post hoc rationalizations, historical animosities and identities are central to the debate over the scope of gender quotas.

Whose rules matter for determining who belongs is a critical socio-political debate that drives identitarian struggles. Rules rhetoric—that is, framing actions by reference to specific norms, laws, and criteria for judging appropriateness—complements rights-claims as an additional topographical feature of the ground on which discursive battles are fought. Citing rules lends the illusion of stability and immutability to concepts and ideas that are constituted by the manner in which people practice them. The intractability of battles of belonging is partly the result of the fact that by referencing different criteria, belligerents are speaking slightly different languages.

Which rules get invoked shapes public debate and impacts whether various audiences see actions as legitimate or appropriate.⁵ Whether one accepts another’s rights-claims hinges partly on whether appeals to certain rules of appropriate conduct by one side are intelligible to the other. The kinds of rules that can get tapped vary. When considering a course of action, for instance, one can invoke rules derived from norms or custom, domestic and international law, ethics and morality, strategic logic, and so forth. A sequel to this book’s compelling account could analyze how rules claims interrelate to produce specific wins and losses for the movements that deploy them. Future scholars should consider exploring in greater detail how outcomes in the fights over rights might be impacted by the specific rules that belligerents cite in order to argue their position.

Lastly, the book’s focus on tactics should cause us to reflect on a broader challenge posed by describing rights discourses. To effectively chronicle rights-claims deployment, it is appropriate to move away from the moral terminology advocates often use. If, however, we simultaneously acknowledge that the power of rights comes in large part from moral discursive moves embedded within them, we must recognize the possibility that to study rights is also to weaken them. Detaching their political uses from their professed moral content relegates what so many see as hopes for a better existence to the realm of mundane political bickering. Rights may well be used as weapons, but so too might social scientific work that analyzes rights tactics. I remain hopeful that any potential power lost by tabling the quasi-divine status of rights-claims in contemporary political discourse is more than offset as people grow better able to identify camouflage and deceptions that serve autocracy, exclusion, and hate.

-Horia M. Dijmarescu

Horia M. Dijmarescu is a Ph.D. candidate in political science at Northwestern University.