Rights

This pioneering new book suggests how different traditions of sociological thought
can contribute to an understanding of the theory and practice of rights. A substantial
opening chapter reviews the emerging field of sociology and rights, and therefater the
volume is divided into four parts, each with a brief introduction:

Part I considers a political economy approach to the questions of rights, taking a

holistic and systems-based view;
Part II focuses on status, norms and institutions in the allocation and functioning of
rights;
Part III has a broadly interpretive approach towards the issue of rights, in which
context and meanings are paramount;
Part IV contemplates how an apparent clash of rights has been dealt with in a variety
of contexts.
A final chapter refers back to issues raised in the opening chapter, and draws out
some general conclusions on the basis of the volume as a whole.

Insodoing, this book provides a sociological treatment of a wide range of substantive

issues, but without losing sight of key theoretical questions. It considers some varied
cases of public intervention, including welfare, caring, mental health provisions,
pensions, justice and free speech, alongside the rights issues they raise. Similarly, it
examines the question of rights from the point of view of distinctive population
groups, such as prisoners and victims, women, ethnic minorities, indigenous peoples
and lesbians and gays.

Rights offers a diverse and detailed exploration of the contribution sociological

thought can make to this increasingly important aspect of social life and will be an
invaluable aid to students.

Lydia Morris is a Professor in the Sociology Department at the University of Essex.

Her recent research interest has been in the politics of migration in the EU, looking
at citizenship, rights and inequality. Her recent publications include Managing
Migration: Civic Stratification and Migrants’ Rights (2002); Social Divisions (1995);
Dangerous Classes (1994) and The Workings of the Household (1990).
Rights
Sociological perspectives

Edited by
Lydia Morris
First published 2006
by Routledge
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© 2006 Lydia Morris for selection and editorial matter; the
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Contents

Contributors vii
Acknowledgements xi
Sociology and rights – an emergent field 1
LYDIA MORRIS

PART I
Political economy and rights 17

1 Do we need rights? If so, what sort? 21

TED BENTON

2 Return of the proletariat? Pension rights and pension

finance in the ageing society 37
ROBIN BLACKBURN

3 Developing an economic sociology of care and rights 55

MIRIAM GLUCKSMANN

PART II
Status, norms and institutions 73

4 Social rights, trans-national rights and civic stratification 77

LYDIA MORRIS

5 ‘Women’s rights are human rights’: campaigns

and concepts 94
DIANE ELSON

6 Human rights, anti-racism and EU

advocacy coalitions 111
CARLO RUZZA
vi Contents
PART III
Meaning, interpretation and rights 129

7 Rights, social theory and political philosophy: a

framework for case study research 133
ROB STONES

8 Rights work: constructing lesbian, gay and sexual

rights in late modern times 152
KEN PLUMMER

9 The sociology of indigenous peoples’ rights 168

COLIN SAMSON AND DAMIEN SHORT

PART IV
The clash of rights 187

10 Punishment, rights and justice 191

EAMONN CARRABINE

11 Mental disorder and human rights 209

JOAN BUSFIELD

12 Free to speak, free to hate? 224

PAUL IGANSKI

A foundation for rights or theories of practice? 240

LYDIA MORRIS

Bibliography 253
Index 280
Contributors

Ted Benton is a Professor of Sociology at the University of Essex. His

interests are in environmental issues and modern social theory, especially
in links between socialist and ‘green’ perspectives, and he also works on
philosophical assumptions of social science. His publications include
Philosophical Foundations of the Three Sociologies (1977), ‘ “Objective”
Interests and the Sociology of Power’, Sociology (1981), The Rise and
Fall of Structural Marxism (1984), Natural Relations: Ecology, Animal
Rights and Social Justice (1993), (with M. Redclift, ed.) Social Theory
and the Global Environment (1994), and (ed.) The Greening of Marxism
(1996).

Robin Blackburn is a Professor of Sociology at the University of Essex. One

strand of his work analyses the dynamics of slavery, slave resistance and
anti-slavery, embodied in two books, The Making of New World Slavery:
from the Baroque to the Modern, 1492–1800 (1997) and The Overthrow
of Colonial Slavery, 1776–1848 (1988). These works look at the forma-
tion of racial ideologies and national identities in a world beset by rivalry
and in transition to modernity. The other strand concerns the workings of
today’s financial institutions, and especially pension funds, an interest
pursued in Banking on Death (2002).
Joan Busfield is a Professor of Sociology at the University of Essex. She
trained initially as a clinical psychologist at the Tavistock Clinic. She then
worked on a study of the social influences on family size, published (with
M. Paddon) as Thinking About Children: Sociology and Fertility in Post-
War England (1977). Her subsequent research has focused on psychiatry,
gender and mental disorder and the health services. Main publications
include Managing Madness: Changing Ideas and Practice (1986), Men,
Women and Madness (1996) and Health and Health Care in Modern
Britain (2000).
Eamonn Carrabine is a Senior Lecturer in the Department of Sociology at
the University of Essex. He has published in three broad areas. The
first draws on his research in the sociology of imprisonment and he has
viii Contributors
published articles in The Howard Journal of Criminal Justice (1998),
Theoretical Criminology (2000) and Punishment and Society (2002). His
book Power, Discourse and Resistance: A Geneology of the Strangeways
Prison Riot (2004), has been published by Ashgate in their Advances in
Criminology series. The second area is his joint research with Prof. Brian
Longhurst on youth culture, and together they have published articles in
New Formations (1999), Journal of Popular Music Studies (2000), and
Sociological Review (2002). The third area lies in criminology generally
and includes, with Essex colleagues, Crime in Modern Britain (2002) and
Criminology: A Sociological Introduction (2004).

Diane Elson is a Professor of Sociology at the University of Essex. Her

current research and teaching interests are in global social change and the
realisation of human rights, with a particular focus on gender inequality.
Recent publications include (co-ed.) Special Issue of World Development
on Growth, Trade, Finance and Gender Inequality (July 2000), UNIFEM
Reports on Progress of the World’s Women (2000 and 2002), ‘Socializ-
ing Markets, Not Market Socialism’, Socialist Register (1999/2000),
‘Gender Justice, Human Rights and Neo-Liberal Economic Policies’ in
M. Molyneux and S. Razavi (eds) Gender Justice, Development and
Rights (Oxford University Press, 2002).
Miriam Glucksmann is a Professor of Sociology at the University of Essex.
Her research interests cover gender; work and employment; social
divisions and their intersection, including ethnic divisions in women’s
work. She was awarded a three-year ESRC Professorial Fellowship,
which runs from 2004 to 2006, to undertake a programme of research on
‘Transformations of work: new frontiers, shifting boundaries, changing
temporalities’. Her publications include Structuralist Analysis in Con-
temporary Social Thought (1974), Women on the Line (1982) published
under the pseudonym of Ruth Cavendish, Women Assemble: Women
Workers and the New Industries in Inter-War Britain (1990) and Cotton
and Casuals: The Gendered Organisation of Labour in Time and Space
(2000).
Paul Iganski is a Lecturer in Sociology at the University of Essex. Before
becoming an academic he worked as a psychiatric nurse, and later as a
Research Officer at the Home Office Research and Planning Unit. His
main areas of research are ‘hate’, violence, ‘rights’, racial stratification
and equal opportunities. His most recent publications include Hate
Crimes Against London’s Jews (2005), with Vicky Kielinger and Susan
Paterson, A New Antisemitism? Debating Judeophobia in 21st Century
Britain (2003), co-edited with Barry Kosmin, The Hate Debate (2002),
an edited collection of essays on hate crime laws, and Ethnicity, Equality
of Opportunity and the British National Health Service (2002),
co-authored with David Mason.
 Contributors ix
Lydia Morris is a Professor of Sociology at the University of Essex. For many
years her main intellectual concerns revolved around aspects of labour
market change, gender relations, social rights and the underclass, based
on research in South Wales (University of Swansea) and the North East of
England (University of Durham). Though some of these interests con-
tinue, her most recent work has been on the politics of immigration
and asylum in the EU, and the sociology of rights more generally. Her
publications include The Workings of the Household (1991), Dangerous
Classes (1994), Social Divisions (1995), and Managing Migration (2002).
Ken Plummer is a Professor of Sociology at the University of Essex. He has
researched and written widely on sexuality (especially lesbian and gay
studies), and is interested in the development of a humanistic method and
theory (especially through narrative, life story and the postmodern turn).
He is the author/editor of Sexual Stigma (1975), The Making of the Mod-
ern Homosexual (1981), Documents of Life (1983), Symbolic Interac-
tionism Vols 1 and 2 (1991), Modern Homosexualities: Fragments of
Lesbian and Gay Experience (1992), Telling Sexual Stories (1995), Chi-
cago Sociology: Critical Assessments (1997: 4 volumes), Documents of
Life-2: An Invitation to a Critical Humanism (2001), Sexualities (2002: 4
volumes) and, with John Macionis, Sociology: A Global Introduction
(2nd edn, 2002). He is the editor of the journal Sexualities and his most
recent book is Intimate Citizenship (2003).
Carlo Ruzza is an Associate Professor of Sociology at the University of
Trento, and a Visiting Fellow in the Department of Sociology at the
University of Essex. His research interests include the role of organised
civil society in transnational arenas, with particular reference to the
normative and policy implications of the inclusion of public interest
associations in decision making and deliberative fora. Recent publi-
cations include Europe and Civil Society: Movement Coalitions and
European Governance (2004), ‘The Northern League: Winning Argu-
ments, Losing Influence’ in Movements of Exclusion: Radical Right-Wing
Populism in Western Europe, edited by J. Rydgren (2004).
Colin Samson is a Senior Lecturer in the Department of Sociology at the
University of Essex. He has been working with the Innu peoples of the
Labrador-Quebec peninsula since 1994. Some of his work has been
linked to a human rights campaign on behalf of the Innu with Survival
International. This resulted in the publication of the widely cited report
Canada’s Tibet: The Killing of the Innu in 1999. This report won the
Italian Pio Manzo peace prize in 2000. His book on the effects of forced
assimilation of the Innu, A Way of Life that Does Not Exist: Canada and
the Extinguishment of the Innu, was published by ISER Press in Canada
and Verso Press in the UK and US in 2003. He is currently working on a
project to document the physical and mental health benefits of cultural
continuity among indigenous peoples in different parts of the world.
x Contributors
Damien Short is a Lecturer in Human Rights at the Roehampton Institute.
He completed his PhD, on Australian Aboriginal rights, in the Department
of Sociology at the University of Essex, where he later held an ESRC
post-doctoral Fellowship. He is the author of ‘Australian “Aboriginal”
Reconciliation: The Latest Phase in the Colonial Project’, Citizenship
Studies (2003), ‘Reconciliation, Assimilation and the Indigenous Peoples
of Australia’, International Political Science Review (2003), and
‘Reconciliation and the Problem of Internal Colonialism’, Journal of
Intercultural Studies (2005).
Rob Stones is a Senior Lecturer in the Department of Sociology at the Uni-
versity of Essex. His research interests include social theory in general
and structuration theory in particular; the critical analysis of docu-
mentary and fiction films, and of their contribution to the public sphere;
the relevance of sociology to debates between liberals, communitarians
and multiculturalists; the nature of experience in late modernity; and the
relationship between abstract social theory and substantive case studies.
Publications include Sociological Reasoning: Towards a Post-Modern
Sociology (1996), Key Sociological Thinkers (ed.) (1998), and Structur-
ation Theory (2005). He is the editor of Palgrave Macmillan’s book series
Traditions in Social Theory.
Acknowledgements

All contributors to this book are, or have been, members of the Sociology
Department at the University of Essex. I wish to acknowledge here the
debt that many of us owe to our one-time colleague Bryan Turner, and his
enduring interest in the study of rights, a topic he viewed as ripe for socio-
logical intervention. We also owe much to the Human Rights Centre here at
Essex for stimulating and coordinating intellectual interest and activities in
the area of rights. My own work for this book was completed during sabbati-
cal leave, first at the Center for European Studies at Harvard University
(September to December 2004), and then at the Centre for the Study of
Human Rights at the London School of Economics (February to June 2005).
I greatly appreciate the stimulation and support I received in both places and
hope that this end product repays their interest.
Lydia Morris
Essex
 Sociology and rights – an
emergent field
Lydia Morris

A number of factors have conspired to place the concept of ‘rights’ high on

the social, political and intellectual agenda. Among such factors are the
consolidation of human rights principles in the post-war era, an associated
and expanding framework of international conventions, the emergence of
various regional systems of protection and some notable cases of the
strengthening of remedies at domestic level.1 Some have seen in human
rights a potential transnational platform from which to contest the unpalat-
able aspects of capitalist globalisation, raising questions about the social
obligations of international corporations (Freeman, 2002). Others have
argued that with the end of Cold War politics, and disillusionment with the
socialist regimes attempted in the Eastern bloc, universal principles furnish
us with new ideals of equity and justice (Wilson, 1997). To these views we
can add the conviction – in the face of a growing diversity of culture and
belief – that human rights may offer the means to bind and cement an
otherwise fragmentary society; a solution to the problem of ‘values for a
godless age’ (Klug, 2003). The promise of universalism has also been used as
a basis for claims to recognition for neglected particularities (e.g. Taylor,
1994), and as a means of superseding citizenship as the dominant status
for rights claims (e.g. Soysal, 1994). It would therefore seem that the late
twentieth century may reasonably be described as the ‘age of rights’ (Bobbio,
1995), yet as Turner (1993) has argued, sociology as a discipline has no
obvious foundation for a contemporary theory of rights.
It was prescient of Turner to identify this gap, at a time when few other
sociologists had recognised the area of rights as central to social structures,
processes and identities, and his writing on the topic is a necessary starting
point for all others wishing to focus on these issues. Part of Turner’s explan-
ation for the absence lies in what he deems a limitation of classical sociology:
its failure to provide an ontological grounding for a theory of rights. In his
account, Durkheim’s (1895) insistence on the analysis of social facts as
things ruled out a consideration of normative concerns, and evaded truth
claims by treating moral and legal norms simply as external constraints on
individual behaviours. The result, argues Turner, is a positivistic account of
law and values that, despite best efforts, cannot fully expunge the question
2 Sociology and rights – an emergent field
of social justice from causal explanation. A similar point could be made
about Weber’s (1948) insistence on value-free social science. Furthermore,
in Turner’s view, Weber’s argument on the increasing rationality of law
meant that he emphasised the decline of its ‘metaphysical dignity’ (Weber,
1978: 875), and focused instead on relations of authority, legitimacy and the
struggle for resources. Turner’s (1975: 146–74) account of Marx’s work in
relation to rights also emphasises power relations, viewing the law as an
instrument of class rule and human rights as a façade to mask economic and
social inequality.
We return to these issues below, and a variety of classical and other
frameworks are explored in the chapters to follow. For Turner, however, the
absence of a normative basis for the study of rights in the work of these early
sociologists has left a heritage of scepticism, and no means of responding to
a relativist position on rights and values. A resolution to this problem, he
feels, would require an ontological foundation for claims to universality,
and he seeks such a foundation through the common condition of bodily
frailty and social precariousness (ibid.: 184–5). Such a move provides the
basis for claims to a universal need for protection, while also prompting the
feelings of sympathy for others that might give emotive force to such a
system. His argument thus offers simultaneously a perspective on the condi-
tions that make a universal system of protection possible, and a recognition
of the limits of human sympathy that make it necessary, ideas that are
explored in Chapter 5.
However, there is scope for a considerable gap between recognition of the
need for protection and its achievement in practice, and this is arguably a
gap that sociology as a discipline is well placed to address. We do not yet
have a fully operative, globally enforceable system of universal rights, and
the strengths and weaknesses of both national and transnational systems of
entitlement and protection are themselves topics worthy of study. So too are
the social processes by which groups accrue rights, and correspondingly the
ways in which already established rights can be eroded, while the active
delivery of rights and impediments to their realisation would also repay
close study. These and related issues produce an agenda for the sociological
study of rights that is in some respects less ambitious than Turner’s quest for
a foundational grounding, but more in tune with the traditional interests
and strengths of the discipline. It is also an agenda that might profit from a
return to the classics, and other works, for guidance as to how to pursue the
sociological analysis of rights in practice.

The sociological classics

It is beyond the scope of this introduction to give a fully developed account
of how classical works might inform a sociology of rights, but with the help
of secondary texts, a few steps can be taken in this direction. As we have
seen, Durkheim (1938: 27) was famously wedded to the study of social facts
 Sociology and rights – an emergent field 3
as things, and was interested in the way social life can generate a collective
consciousness that is constituted by individual social agents but also exerts a
reciprocal influence on their actions. Thus, in his study of religious belief
(Durkheim, 1961; Lukes, 1973: 465–72; Pickering, 1975) he sees worship as
the means by which society celebrates its own identity and in doing so
strengthens its social bonds. In fact, for Durkheim, a fully human existence
was dependent for its meaning on some connection with a wider social
world, a view that was supported by his interpretation of suicide statistics
(Durkheim, 1951; see Chapter 1). He was preoccupied with the problem of
anomie in modern society, and the perceived need for a new moral con-
sensus, feeling that with growing individualism ‘there remains nothing that
men may love and honour in common, apart from man himself’ (Durkheim,
1975: 67). Some writers (Cladis, 1992; Parkin, 1992; Pickering and Watts
Miller, 1993) have interpreted this position as an incipient doctrine of
human rights, which implicitly views rights as a possible source of social
cohesion.
Pickering and Watts Miller have written explicitly on the topic, seeing in
Durkheim’s work a view of human rights as social facts, not inherent in man
but bestowed on individuals by society. He is thus argued to offer a relativist
understanding of rights, as developed in a particular place and subject to
change over time; a view of rights that therefore lies in the realm of practice,
not theory, for ‘It is the state that creates, organises and makes a reality of
these rights.’2 Pickering (in Pickering and Watts Miller, 1993) identifies
related ideas in Suicide, which discusses a ‘cult of human personality on
which all our morality rests’ (Durkheim, 1951: 334), and sees in this the basis
for a secular moral authority that makes man sacred in the eyes of man.
Durkheim (1975: 62) seems to rely heavily on the state for the promotion of
his incipient notion of rights, and is commonly criticised for rather too naive
an assumption of this possibility. However, as Parkin (1992: 76; cf. Lukes,
1973: 271–4) observes, he also notes the need for strong intermediary
organisations, and has a vision of society in which the state and civil society
are mutually balancing, each having a malign and benign potential.
Durkheim has also been criticised for his failure to deal adequately with
diversity. His work prefigures many aspects of contemporary debate
between liberals and communitarians, the former position emphasising
individual autonomy and the latter the collective foundations of identity.
These ideas are explored in Chapters 1, 7 and 10, and have been discussed
extensively by Cladis (1992), who sees in Durkheim (1887)3 an attempt to
overcome the impasse between the two positions. Durkheim saw both
advantages and disadvantages in liberalism, believing in a free-spirited and
civic-minded individual but troubled by the threat of anomie in the absence
of shared beliefs and values that might bind the individual to society.
According to Cladis, Durkheim (1975: 62) finds a unifying position in the
assertion of a moral individualism: ‘a religion in which man is, at the same
time, the believer and the god’, such that the individual is neither a totally
4 Sociology and rights – an emergent field
discrete unit nor simply a social product but a being of ‘situated freedom’
(Taylor, 1979; cf. Lukes, 1973: 23). Thus, argues Durkheim, ‘Very far from
there being the antagonism between the individual and society which is
often claimed, moral individualism, the cult of the individual, is in fact the
product of society itself. It is society that instituted it and made of man the
god whose servant it is.’4 This position is apparently accepting of both diver-
sity and autonomy (Cladis, 1992: 115), though only within the commonal-
ity of a shared moral position.
Even if persuaded by Turner’s reading of Durkheim, we can still find in the
latter’s work an agenda for the study of rights and a theoretical position
within which to locate such a study. Certainly, his arguments seem to sup-
port a relativist, or more correctly a ‘social constructionist’, view of rights,
but one that is grounded in the collective consciousness (though for him the
rights of man meant exactly that; Parkin, 1992: 81; see also Lehmann,
1994). His approach immediately provokes questions about rights as a route
to social cohesion, the implicit nature of public support for a system of
fundamental rights, the role of the state in either securing and protecting or
undermining such rights, the capacity of civil society groups to act as a check
or balance on the state and their role in both generating and defending
rights. His work begs questions about not only the depth of public support
for fundamental guarantees but also how far such support is fully accepting
of diversity, and able to incorporate groups that appear to hold contrasting
beliefs; whether liberal freedoms can really coexist with other traditions of
thought and practice. This raises broad and difficult issues, some of which
are pursued in Chapter 7, but Durkheim was posing such questions and
addressing a related body of research more than 100 years ago. It is as
instructive to take up and work with the direction of his argument as it is to
identify its limitations and failings.
One predominant theme in Weber’s writing is the exclusion of value
judgements from social scientific work. For him: ‘evaluative ideas are . . .
empirically discoverable and analysable elements of human conduct, but
their validity cannot be deduced from empirical data’ (Weber, 1949: 111).
Similarly, in ‘Science as a vocation’ (Gerth and Mills, 1948: 145), he argues
that the historical and cultural sciences teach an understanding of social and
political phenomena but give no answer to the question of how to judge
activity in these realms. This position seems consistent with his rejection of
natural rights (see Strauss, 1953), not just because human thought is held to
be historical, but because an unchangeable variety of principles of right or
good conflict with each other, and none can be proved superior. Thus, as
Turner (1978: 875) notes, he rejects the idea of a universalistic and norma-
tive foundation for law, and hence rights, and sees the relativisation of legal
norms under juridical rationalism as leaving the law ‘unmasked . . . as the
product or technical means of a compromise between conflicting interests’.
A central theme in Weber’s work is the drive towards rationality in modern
society, one element of which is argued to be the growing use and significance
 Sociology and rights – an emergent field 5
of bureaucracy. The capitalist market economy demands precise, continuous
and speedy administration, and so too do the administrative tasks associated
with the great state and the mass party. As a tool for the large-scale organ-
isation of political and economic activity, bureaucracy provides a means of
management and administration that is argued to operate the more perfectly
the more it is dehumanised (Gerth and Mills, 1948: 216).
Weber’s work in this area implies a relationship between bureaucracy and
rights, as he sees the rise of the former inevitably to accompany the rise of
mass democracy (and to signify an increase in public expenditure). Bureau-
cracy in this context is held to guarantee the sharp separation between an
objective legal order and the subjective rights of the individual. Public law
therefore regulates the interrelationship between public authorities and their
subjects, and the rights between governed individuals (Gerth and Mills,
1948: 239). Weber also argues (Rheinstein, 1954) that the demand for legal
equality and guarantees against arbitrary judgement requires formal
rational objectivity in administration, though this detached, rule-bound
nature of bureaucracy comes into conflict with the democratic ethos. Thus,
‘The propertyless classes in particular are not served, in the way in which
[the] bourgeois are, by formal “legal equality” and “calculable” adjudi-
cation and administration’ (ibid.: 355). Weber has been criticised for high-
lighting the positive functions of bureaucracy and ignoring its disfunctions
(Parkin, 2002: 36), but here he comes close to recognising that it does not
deal well with broader questions of social justice, an idea pursued further in
Chapters 4 and 6.
While Weber notes the role of state bureaucracy in the administration of
social welfare (Gerth and Mills, 1948: 213), he does not expand more gen-
erally on state involvement in the construction and administration of the
rights of citizens, though his work on social closure is directly relevant. This
process is bound up in the struggle for power and resources, with the num-
ber of strata and sub-strata increasing as each tries to secure its position
against other groups (Parkin, 1992: 100). Weber’s discussion of ‘Class status
and party’ (Gerth and Mills, 1948: 180) also throws some light on this
competition, as outlined in Chapter 4, though Parkin notes that Weber’s
neglect of the role of the state in processes of social closure is a serious flaw
in his account. However, Parkin suggests some ways in which the idea could
be linked to racial and ethnic closure following colonial conquest or the
creation of second-class citizens by forced migrations, while Marshall (1950)
explores the promise of equal status implicit in the idea of citizenship.
Lockwood (1996) takes these connections further through an analysis of the
mutually reinforcing nature of market, bureaucracy and citizenship, which
yields a structure of ‘civic stratification’, or a system of legitimate inequality
overseen through the administration of rights by state bureaucracy. Thus,
while Weber rejects the idea of ‘natural rights’, his work is rich with con-
cepts and arguments that are suggestive of a very challenging agenda for the
development of a sociological approach to the practice of rights.
6 Sociology and rights – an emergent field
Unlike Durkheim and Weber, Marx does not espouse a value-free model
of the social sciences. Though he may see dominant moral concepts as an
expression of the interests of the ruling powers in a society, Benton (1993)
notes a commitment in Marx’s work to an alternative morality of emancipa-
tion. Turner argues that Marx’s critique of rights is part of a more general
critique of bourgeois ideology, bound up with a rejection of human and
citizenship rights as manifestations of a partial liberation that leaves intact
the fundamental relations of capitalist exploitation. This view has been
detailed by Lukes (1991: 173–88), who notes that Marx and Engels always
wrote disparagingly about the language of rights and justice, seeing the
moral claims of recht (rights) as a mask for the protection of bourgeois
interests. Marx’s critical comment on the civil rights embraced by the consti-
tutional declarations of France and North America is undisputed, and
expressed in specific opposition to their underlying (and undesirable) view
of human nature. This is one source of the argument that Marx sees human
rights as a façade, with the key practical application of liberty being a right
to property – to enjoy and dispose of it freely, ‘without regard to other
men’ (Marx, 1975: 163). The right to equality and security are also argued
to rest on a view of self-sufficient and egoistic individuals, meeting their
needs through the ownership and exchange of property.
This understanding of rights offers a view of a society held together by
need and private interest, such that ‘None of the so-called rights of man,
therefore, go beyond egoistic man, beyond man as a member of civil society,
that is, an individual withdrawn into himself, into the confines of his private
interests and private caprice, and separated from the community’ (ibid.:
164). Furthermore, argues Benton (1993), civil society is seen as a counter-
part to the modern democratic state, logically entailed in its civil rights; an
autonomous sphere of alienated, egoistic individuals. Hence, both political
and civil rights are limited in the way that bourgeois civil society, built on
the primacy of the individual and on private property ownership, is limited.
Nevertheless, Benton (ibid.: 108) challenges common readings of Marx’s
position in ‘On the Jewish question’, to argue that, at the very least, Marx
fully recognised the importance of the bourgeois right to freedom of expres-
sion and association, stating that ‘Political emancipation is, of course, a big
step forward’ (Marx, 1975: 155). Though falling short of the ‘final form’ of
human emancipation, these rights went as far as the existing order permitted
and could be the basis for protest against established relations of oppression.
Thus, argues Benton (1993: 109), Marx’s position is ‘a critique of the theory
and practice of rights, not of rights as such’, which leads on to the question
of whether human emancipation promises ‘some richer, socially content-full
realisation of human rights, or whether it entails the transcendence of rights’
(ibid.: 110).
For Lukes (1991: 198), ‘despite its rich view of freedom and compelling
vision of human liberation’, Marxism offers no assurances in the realm of
individual freedom and leaves an unclear vision of what the morality of
 Sociology and rights – an emergent field 7
emancipation promises in terms of the future organisation of society. For
Benton, however, bourgeois rights in themselves are viewed not as unaccept-
able distortions that inhibit emancipation, but as limited by their context
and falling short of recognising full human potential. So Marx leaves us with
the implied questions of how rights might function towards the achievement
of human emancipation; whether (as in Lukes’s reading) such emancipation
should render rights unnecessary, or (alternatively) whether human emanci-
pation will usher in truly universal moral rights whose content has yet to
be determined. These questions themselves contain an agenda for future
research in the realm of rights; an agenda extended by Benton’s own work
(1993; Chapter 1 in this volume), which embraces a naturalist view of
human beings, and explores social belonging, embodiment and environ-
mental integrity as the foundation for rights to protection. This position
goes beyond Turner’s view of bodily frailty and social precariousness as an
ontological grounding for human rights, to raise questions that permeate the
nature of all social relations and institutions. It seeks to explore human
autonomy and commonality, our relations with non-human beings and the
environment, and the realisation of our ‘species being’.
Marx, Durkheim and Weber, though differing among themselves, from
Marx’s utopianism, through Durkheim’s pragmatism, to Weber’s pessimism
(cf. Parkin, 1992), have much to say, not so much about the ontological
grounding of rights, but about the searching questions that may be asked of
how rights come into social being and operate in social practice, whose
purpose they serve and what interests they protect, and whether they are
guaranteed or constrained by the letter and practice of the law. While
Turner’s (1993: 175–6) argument may still stand – i.e. that ‘Sociology finds
it difficult to accept the notion of human rights without acknowledging a
universalistic ontology’, and in its absence ‘recognises “rights” merely as
claims for services or privileges by social groups involved in competitive
struggles’ – there is still much to study here, including whether the struggle
must necessarily be competitive. Even with the growing interest in and
emphasis on universal human rights in contemporary society, very few
rights are absolute and most are in some way limited or conditional. It is
therefore precisely these kinds of questions that provide the most fertile
ground for sociological analysis.

T. H. Marshall and his critics

The sociological work that has most directly engaged with the area of rights
as an interesting and legitimate subject matter is, of course, Marshall’s
(1950) essay on citizenship and social class, which Turner (1993: 187)
argues has served in the place of a sociology of rights. A key feature of
Marshall’s classic work is its implicitly evolutionary account of the devel-
opment of civil, political and social rights in Britain from the eighteenth to
the twentieth centuries. These respectively represent the right of individual
8 Sociology and rights – an emergent field
freedom, the right to participate in the exercise of political power and the
right to what would now be termed social inclusion, encompassing a range
of guarantees from ‘the right to a modicum of welfare and security to the
right to share to the full in the social heritage and to live the life of a civilised
being according to the standards prevailing in the society’ (Marshall 1950: 8).
Marshall’s main interest, however, is in the role of social rights in accom-
modating the tension between capital and citizenship, and the possibility
that equality of status (via citizenship) may override the material inequalities
of social class. Duties as a necessary counterpart to rights receive a brief
mention, including notably the duty to work, though it was Marshall’s belief
that the general direction of change had been away from duties and towards
rights. However, he recognised that the ideals of citizenship had been only
imperfectly achieved, and that, indeed, ‘there is no universal principle that
determines what those rights and duties shall be’. He also conceded that the
associated rights themselves functioned as a basis for inequality of various
kinds, with readily identifiable gaps between policy and delivery with
respect to a number of rights, stemming from both class prejudice and the
unequal distribution of wealth. Among the interesting questions he posed
was whether there are ‘limits beyond which the modern drive towards
equality cannot pass’ (ibid.: 7). Some of these issues are pursued further in
Chapters 1, 4 and 11.
For Turner, the concept of citizenship has succeeded in a limited way, as a
middle-range theory of the evolution of social welfare, which permits the
evasion of questions about a universal ontology, Turner’s key requirement
for an adequate theory of human rights. Furthermore, the debate about
citizenship is argued to be covertly normative – though there is nothing
covert about Marshall’s probing treatment of the relationship between the
needs of market capitalism and the promises of a system of social rights.
Indeed, his treatment of this tension, as we saw above, raises very interesting
questions about the functioning of a system of rights in practice, and the
formal and informal inequalities that may be entailed. In fact, in Marshall’s
essay we find echoes of some of the issues emerging from the treatment of
rights in the three classical traditions touched on above: Marshall’s account
of the idealised promise of citizenship is close to Durkheim’s notion of a
society worshipping itself, and his awareness of the stratified nature of some
rights and failures of delivery are firmly in the tradition of Weber’s concern
with the formal and informal dimensions of a status order. His interest in
the (limited) role of welfare in addressing the tension between capital and
citizenship underlines Marx’s critique of liberalism, though the structures of
institutional and economic inequality represented by market capitalism are
not seriously called into question.
In addition to his considerable insight into the functioning of rights, a
major contribution to flow from Marshall’s work is the richness and variety
of critical responses to his essay, which have opened up an extremely inter-
esting and demanding agenda for the study of rights (whether universal or
 Sociology and rights – an emergent field 9
otherwise). Marshall’s work has, of course, been widely criticised on a
variety of now familiar points, most notably the peculiarly British nature
of his account of citizenship, and the implied evolutionary logic in his view
of the development of rights (Mann, 1987; Turner, 1990). It is not clear
whether Marshall’s intention was to offer a particularistic account of British
citizenship, or to set up this account as a universal model – there is no
explicit claim for the latter. While an evolutionary premise is dominant,
there is some recognition of ‘rights’ as a terrain of struggle, and he notes the
importance of civil rights in workers’ battle for social rights. The ‘intensely
individual’ nature of civil rights was thus turned to address collective inter-
ests (Marshall, 1950: 26) in the development of economic and social rights.
A growing awareness of rights as a contested terrain is thus prefigured in
Marshall’s work, has been recognised and developed by subsequent writers
(e.g. Giddens, 1985) and is further explored in a number of the chapters
to follow (see Chapters 5 and 8). There is also an incipient awareness in
Marshall of the interdependence of different rights: that the right to prop-
erty means little to those who have none, as the right to freedom of expres-
sion may mean little to the uneducated, and equality before the law may in
practice depend on access to legal aid. Furthermore, he sees the substance of
citizenship itself as a possible source of legitimate inequality.
We have noted that Marshall’s theory takes market capitalism as its
setting, but Chapter 1 sets up a framework for thinking about rights in the
broader context of structured inequality, and Benton provides a critique of
liberal rights in these terms, without departing from some acceptance of
the need for protections against harms from a variety of sources. Chapter 2
gives a specific example of the way different investment and taxation deci-
sions can radically affect the substance, content and equity of ‘rights’ in
relation to pensions. In other respects, perhaps the most apparent limitation
of Marshall’s perspective is its failure to address the position of non-citizens,
revealing for some a gulf between universal human rights and citizenship
rights. Viewed from the inside, citizenship rights may represent the fullest
attempt to deliver on the promise of universally recognised human rights,
but viewed from the outside they can function as a tool of exclusion and
closure (Brubaker, 1989). Turner gives the example of aboriginal peoples,
for whom the operation of national citizenship can be oppressive in a variety
of ways, as explored in Chapter 9. A similar point may be made about the
position of non-citizen immigrants and asylum seekers, who must be some-
how integrated into a system of rights outside of the operation of citizenship
(see Chapter 4). These instances relate to a broader argument (Turner, 1993:
15) that citizenship needs to develop in such a way as to take account of the
globalisation of social relations and the increasing differentiation of the
social system, which is in some respects related to this trend. Thus eliding
analysis and prescription, Turner argues that the national citizenship model
of rights needs simultaneously to be more universal and more particular, and
so must be extracted from its location in the nation state. This argument is
10 Sociology and rights – an emergent field
increasingly common, but in seeing ‘human rights solidarity as a historical
stage beyond citizenship solidarity’, Turner (1993: 498) comes perilously
close to the much criticised evolutionary perspective.
In fact, a number of writers have attempted to address the limitations of
Marshall’s perspective by reaching for the universal, in Turner’s case by
seeking a universal ontology for the grounding of rights. However, interest
in and optimism about the ‘universal’ aspect of rights have also been linked
to broader institutional developments that have been argued to transcend
the level of the nation state. Thus Giddens (1990) identifies a new phase in
modernity, centred on ‘the extreme dynamism and globalising scope of
modern institutions’ and linked to a ‘stretching process’ whereby different
social contexts and regions become networked across the globe. Meyer et al.
(1997) have addressed a similar set of issues by emphasising the force of
‘world culture’ in shaping the form and actions of nation states, which
operate not as independent rational actors, but as culturally embedded
occupants of a role. Nation states are argued to show strong consensus for
principles such as citizenship, development, justice and human rights, for
which they claim universal applicability and which have come to form the
basis of a constraining institutional framework. States are thus depicted less
as autonomous agents who are collective authors of their own history and
more as enactors of ‘conventionalised scripts’. In similar vein, Soysal (1994)
has argued that national citizenship has been superseded by post-national
membership on the basis of universal personhood, such that the rights of
non-citizens have been built into national regimes of rights. Some of these
ideas are discussed in Chapter 6, which considers the diffusion of universal-
ist ideals to localised settings, in the context of EU anti-discrimination
policy.
There have, of course, been a number of concrete developments since
Marshall’s essay, which to some extent reflect the criticisms of his work,
notably the entry into force of the European Convention on Human Rights
(ECHR) in 1950, and the two key International Covenants on Civil and
Political Rights and on Economic, Social and Cultural Rights (both in
1966), along with a wealth of other transnational conventions. However,
the nation state remains the principal instrument for the delivery of rights,
whether grounded in international conventions or in national rules of citi-
zenship. Indeed Meyer et al. (1997: 154–5) note that the principles of world
culture may not mesh with practical experience, such that the ‘broad and
diffuse goals’ of nation states lead to a ‘decoupling’ of purpose and struc-
ture, intention and result. In other words, one likely outcome is a clash of
national interests with global culture, or at least an eclectic mix of conflict-
ing principles. Such a view is not inconsistent with the social-constructionist
position sketched out by Waters (1996), which emphasises the cultural and
historical character of ‘universal’ human rights, and the variable role of
rights in consolidating political support and control at national level (cf.
Giddens, 1985; Mann, 1987). The way in which different levels of interest
 Sociology and rights – an emergent field 11
and entitlement interact is, to some extent, an empirical question, which
among other issues raises the question of the degree of national autonomy in
the granting of rights to non-citizens, discussed in Chapter 4. However, a
comparative approach to rights regimes can also be valuable in showing
how systems of provision, and their correlative sets of rights, can vary radic-
ally according to different national traditions and cultures, and that legal
entitlement is not the only basis for a claim to rights, as we see in Chapter 3.

The problem of particularity

In addition to the recognition and delivery of entitlements according to
different rights regimes, there is a related question about the capacity of any
such regimes to deal with particularity. This issue engages with two other
points sometimes raised in relation to Marshall’s original essay. One is
the theoretical argument associated with postmodernism, which views
national citizenship as part of a broader process of ‘modernisation’, with its
evolutionary assumptions and veiled ethnocentrism (Turner, 1993: 14),
addressed in Chapters 9 and 10. The other point focuses on process, to note
that social struggles over rights tend to be overlooked (though not com-
pletely ignored) in Marshall’s broad evolutionary perspective. Indeed, the
struggles of different groups for recognition and resources have proved a
rich vein of inquiry for writers interested in the granting and delivery of
rights, and are strongly represented in the chapters to follow (e.g. Chapters
5, 6 and 8). Such struggles have sometimes been construed in terms of ‘status
politics’ (Turner, 1988), which build on the way the ideals of citizenship
have introduced a principle of equality into the terrain of rights. Hence,
particular groups increasingly seek to challenge what are perceived as de
facto disadvantages and to mobilise around claims to particular needs for
recognition and/or resources. This argument is indirectly supported by the
view that even the construction and practice of rights that profess universal-
ity are in fact particularist in content; that is to say, they have been con-
structed around a set of assumptions about the content of social life, the
model for which – at least implicitly – has been the white heterosexual male
(Phillips, 1992; Chapter 5 in this volume).
As a result, a further important development within the literature on citi-
zenship has been a focus on the embodiment of rights; that is, the way in
which rights translate into lived experience with respect to diversity. Not-
able examples are differences of gender and sexuality (see Bhabha, 1996;
Richardson, 1998) and their role in shaping access to rights, though such
analysis may be readily extended to race (Anthias and Yuval-Davis, 1992),
disability, age, etc., and their mutual interconnections. An exploration of
these issues invites attention to the way in which formal status equality and
its associated rights are shaped by normative prescriptions and expectations
that implicitly deny particularist needs – recent examples have been the
failure to accommodate women’s reproductive role in conceptions of the
12 Sociology and rights – an emergent field
occupational career, the absence of recognition for the cultural expression of
minority citizens and denial of the validity of same-sex unions. The process
of access to rights, or the machinery for their delivery, may furthermore
incorporate informal systems of social esteem related to such particularisms,
as with judgements that seek to identify the deserving and undeserving.
Processes of stereotyping, prescription and devaluation have been argued
to function in close interaction with class-based disadvantage in shaping or
constraining access to rights, and this position is captured by Fraser (1995)
in her analysis of redistribution and recognition. The former concept relates
principally to material distinctions of class and/or welfare divisions, and the
latter to cultural or normative distinctions that generate differing degrees of
social esteem or status. A similar configuration of influences may be found in
Turner’s (1988) model of three dimensions of stratification – class, entitle-
ment and culture – and is illustrated by some of the debate surrounding the
concept of the underclass and the classical distinction between the deserving
and the undeserving (see Chapter 4). However, these insights also apply to a
number of other areas, and Chapter 8 documents aspects of the gay and
lesbian movement as a struggle for both recognition and rights, the two
being inextricably related, while Chapter 11 looks at shifting perceptions
and treatments of mental disorder. The literature on gender and rights has
challenged the construction of rights by virtue of their confinement to the
public sphere (e.g. Lister, 1997), arguing that both formal entitlement and
the active realisation of public rights may be shaped by constraints that
derive from the private sphere (Pateman, 1989). In this respect, gender func-
tions as a status in two ways: in the ascription of features that dictate the
distribution of private obligations of caring (see Chapter 3), and by the
associated allocation of esteem, which devalues the private sphere (Fraser,
1995). Both of these aspects of a gendered status regime limit access to the
public sphere and therefore to certain rights (see Chapter 5).
There has been some reaction against such arguments, one view being
that generalised structures of disadvantage (as in the case of gender differ-
ence) cannot be addressed by a focus on individual rights (see Cook, 1993:
233), while other criticisms go further, and wish to challenge any unitary
category of ‘woman’ (Butler, 1990; Nash, 2002; see for discussion Chapters
5 and 10). This complicates, rather than invalidates, a gender focus, how-
ever, and certainly cannot undermine the claim that some such generalised
view of ‘woman’ has to date structured access to a variety of rights. Cer-
tainly a historical account of gender and citizenship (Lister, 1997) reveals
that perceptions of women held by legislators and interpreters have been
impediments to equal treatment. We also find that where formal equality has
been established, informal assumptions and expectations can produce a def-
icit in its active attainment. Yet a gender-blind approach can also produce
discrimination through a failure to take account of the circumstances most
common to women’s lives, thus generating the equality versus difference
dilemma, and the challenge of combining both claims, ideas explored in
 Sociology and rights – an emergent field 13
Chapter 5 (see also Scott, 1988). The claims generated by particularisms of
all kinds have led to the quest for an approach to ‘differentiated universal-
ism’ (Lister, 2003) that can accommodate sameness and difference, to be
arrived at through a process of deliberative toleration, though how this
might be achieved is by no means self-evident (Chambers, 1996; Norval,
2004).
Race has in common with gender the fact of being a basis for social
differentiation whose markers are borne on the body. Though the idea of
race as a biological category that can directly account for social difference
has long been discredited, it nevertheless has a continuing (though often
indirect) significance as a system for the ‘assignments of rights to indi-
viduals’ (Rex, 1986: 19). This significance also extends to ethnic differences
based on a claim to common origins or a shared culture, whose manifest-
ations may be in the form of cultural signals as much as literal physical
characteristics. There are also distinctions of nationality, which may
coincide with or be cross-cut by racial or ethnic difference (Smith, 1995) –
and in the latter case such classifications can underpin processes of ethnic
cleansing in which the ‘international community’ has sometimes seemed
powerless to intervene. Like gender, the issues of race and ethnicity can be
linked to demands to be treated as both ‘same’ and ‘different’ in relation to
rights. Chapter 6 notes the way in which these ideals can sometimes collide
in differing approaches to anti-racism. Claims to sameness can occur when
informal judgements of esteem or desert impede access to formally held
rights, as with suspicion of any ‘foreign-seeming’ client seeking access to
public provisions. The argument can also carry over to formalised inequal-
ities in entitlement that consolidate (ex-)colonial relationships and may be
apparent in aspects of immigration law5 (see Chapter 4), while Chapter 12
problematises the ideal of equal treatment before the law in the case of
racially aggravated offences.
The claim to difference, however, has opened up a larger, more complex
debate about whether protections for racial and/or ethnic minorities can
be achieved within the liberal, individualistic framework that has tradition-
ally underpinned guarantees of universal human rights. While anti-
discrimination legislation classically addresses the issue of minority rights
within such a framework, the communitarian argument of a collective basis
for rights is at its strongest in relation to cultural rights. Thus Taylor (1994),
for example, has argued that individual identity is by its nature relational,
and that cultural rights in particular cannot be pursued on an individual
basis. He therefore supports not simply the provision of facilities to enable
collective expressions of cultural identity, but a positive valuing of other
cultures in the form of ‘recognition’. However, anthropologists have increas-
ingly come to view culture as a site of contestation (Gupta and Ferguson,
1997; Wilson, 1997), which points to the risks of reifying a culture such that
it is artificially maintained against change, and Taylor recognises this dif-
ficulty. Such reification is particularly at issue where beliefs and practices
14 Sociology and rights – an emergent field
place constraints on individual autonomy, as discussed in Chapter 7,
bringing the liberal and communitarian orientations into potential conflict
(Kymlicka, 1989). It is also salutary to ask what ‘culture’ really stands for in
such debates, and in some cases the claim is not so much for the passive
valuing of recognition, but for the active allocation of resources (see Fraser,
1995; Chapters 5 and 6 in this volume). In extreme cases, the very legal
framework conferring sovereignty, citizenship and land rights may be at
stake, as we see in the case of aboriginal rights, discussed in Chapter 9. This
is but one example of the problems emerging from the arrangement whereby
the nation state is at once the guarantor and transgressor of human rights.
Potentially competing value frames are explicitly discussed in Chapter 7,
which advocates a context-sensitive approach to rights, weighing questions
of individual autonomy against the background of culturally specific inter-
pretations of social duties and obligations to others. At the extreme, it
may be argued that every individual is particular, ‘the only one of his kind’
(Levinas, 1993), and this hints at the possible oppressions exerted by any
general (including universal) rule or law. It is in this sense that Derrida
(1992) counterposes universality and justice, with justice calling attention to
the uniqueness of every situation (see Chapter 10). He writes of the undecid-
able tension that lies between the generalising nature of law and the particu-
larity of its application in any individual case. Hence, ‘Justice as law [droit]
seems always to suppose the generality of a rule, a norm or a universal
imperative. How are we to reconcile the act of justice that must always
concern singularity, individuals, irreplaceable groups and lives . . . with rule,
norm, value or the imperative of justice which necessarily has a general
form’ (ibid.: 17). Huge significance thus attaches to the interpretation and
application of a rule or law, though sensitive interpretation can never over-
ride the rendering of a judgement over one who does not share the language
in which the law is inscribed (ibid.: 18) (see, for example, Chapter 9).
Levinas highlights other limitations in the application of justice, and
writes of ‘a possible war between multiple freedoms, or a conflict between
reasonable wills’, noting that a resolution through ‘justice’ will ultimately
represent ‘a certain limitation of rights and free will’. From this perspective,
a clash of rights is almost inevitable, and one example is explored in
Chapter 12, which considers the case of hate speech, whereby the right of
minorities to be protected from the public expression of hostile sentiments
can be said to collide with the right to free speech. The conventional solution
to such a clash is a utilitarian reference to the ‘general good’ of the com-
munity, though even the conception of this general good requires an act of
interpretation. Other cases of particularity can also involve a clash of rights,
and certainly raise questions about the protections owed to groups who are
constrained or contained for the supposed better good of society and (some-
times) themselves – prisoners and mental health patients. These two groups,
alongside the sexually ‘deviant’, have been a focus of interest in the work of
Michel Foucault. His concern is with the triangle of power, right and truth
 Sociology and rights – an emergent field 15
(Foucault, 1977; Burchell et al., 1991), and in particular the discursive
power that lies outside of sovereignty. His work has emphasised the mani-
fold relations of power that permeate the social body, and the disciplinary
function of discourse that operates through the institutionalisation and pro-
fessionalisation of truth, and extends to the very constitution of the indi-
vidual, as outlined in Chapter 11. Foucault’s work therefore draws attention
to the controlling aspect of rights, which offer not simply a means of provi-
sion, but also a mechanism of surveillance and control, apparent in different
ways in Chapters 4, 10 and 11. However, against such a disciplinary exercise
of professional expertise, he recognises the centrality of subjugated know-
ledges, in some respects called into being by the disciplinary exercise itself,
but which may none the less provide a basis for its subversion. These ideas
have proved a source of insight for the gay and lesbian movement, and for
those interested in the rights of prisoners and mental health patients (see
Chapters 8, 10 and 11).

Purpose of the book

We began this introduction with a reference to Turner’s argument that
sociology is uncomfortable with the concept of rights, and especially uni-
versal human rights, in the absence of any clear ontological foundations for
their existence. Lukes (1991) concedes some difficulty in establishing a clear
theoretical source, but observes that a belief in such rights is widespread
among politicians, statesmen, lawyers and activists. He adopts a working
definition from Feinberg6 that sees human rights as ‘generically moral rights
of a fundamentally important kind held equally by all human beings,
unconditionally and unalterably’. Lukes recognises that these rights may be
sometimes understood as ‘ideal’ in the sense that they are not necessarily
fully recognised in practice, and that few are absolute. Indeed, an insistence
on including only those rights that are absolute would have the effect, he
argues, of ruling out most of the rights specified in the UN Universal Declar-
ation of Human Rights and its associated instruments. His sketch leaves us
with a vision of human rights that has not been fully actualised, and a system
of rights that is in some degree open to qualifications or conditions. This is
especially the case for those rights that operate outside of the framework of
universal human rights, and are more properly held to be in the gift of the
state, as with some of the rights that may be granted to non-citizens. This is a
picture rather in conflict with Dworkin’s (1978: xi) conception of rights as
‘trumps’ that individuals hold against the state, though in practice very few
rights function in this categorical manner. In fact, Dworkin himself recog-
nises the need for distinctions between different types of rights, contrasting
‘background’ rights, which function in an abstract way against community
or society as a whole, with ‘institutional rights’, which are much more
concrete and context-bound.
I am therefore drawn to the conclusion that it is the very indeterminacy of
16 Sociology and rights – an emergent field
rights that is sociologically interesting, and that among the questions that
might be posed are at what level particular rights operate, which rights may
be placed under the umbrella of universal human rights, how particular
social groups lay a claim to such rights, what are the acts of interpretation by
which social actors are required to legislate on such claims, and how claims
to rights are affected by the social, political and economic context in which
they operate. For all of these reasons we refer to ‘rights’ rather than ‘human
rights’ in the title of this volume, and in doing so accept the prevailing
consensus (Donnelly, 2003) that universal human rights are historically
and socially contingent, the product of a particular time, place and set of
circumstances, and a work in permanent progress, ideas I return to in the
conclusion.
The intention of the present volume is to explore the sociological resources
that can be brought to bear on an understanding of rights in practice. It
is of necessity an eclectic collection, intended to demonstrate a variety of
approaches rather than to cover exhaustively all possible areas of provision
and protection. The chapters to follow are therefore organised, as far as
possible, on the basis of theoretical orientation rather than substantive
focus, though in practice most draw on more than one perspective. The first
grouping of chapters shares a political economy approach to the questions
of rights, taking a holistic and systems-based view; the next grouping shares
a focus on status, norms and institutions in the allocation and functioning of
rights; the third grouping shares a broadly interpretive approach, in which
context and meanings are paramount. The last grouping slightly departs
from this logic, and looks at how an apparent clash of rights has been dealt
with in a variety of contexts. Each part is prefaced by a brief introduction.

Notes
1 Such as the British Human Rights Act (1998).
2 Quoted in Pickering and Watts Miller (1993: 56), from Leçons de Sociologie
(1950: 74).
3 Quoted in Cladis (1992: 1), from La science positive de la morale en Allemagne
(1887).
4 Quoted in Cladis (1992: 115), from ‘The determination of moral facts’ (in
Durkheim, 1974: 59).
5 An example was the notorious primary purpose rule, abolished in 1997, which
required applicants for family unification to demonstrate that the primary purpose
of the marriage did not have an economic motivation.
6 Quoted in Lukes (1991: 176).
Part I

Political economy
and rights

The opening part of the book contains three chapters that fall roughly into
the tradition of political-economy analysis, in which an emphasis is placed
on the holistic understanding of a social formation, through a focus on the
political and economic relationships that underpin social life. The first of
these chapters considers a radical critique of the liberal tradition of rights,
though from a position generally accepting of the priority placed on
individual well-being, and on equal worth. The argument of the chapter,
however, challenges the broader assumptions that have prevailed in rights
discourse, notably a view of the individual as divorced from both benign and
malign dependencies. Neglect of the former underestimates the extent to
which individual identity is located in interpersonal relations, while neglect
of the latter underestimates the effect of socio-economic inequality on access
to, and the value of, individual freedoms. Instead of questioning this frame-
work, it is argued that existing human rights guarantees seem to operate
from within and to offer forms of amelioration that contain rather than
challenge inherent tensions. A similar argument was advanced by Marshall
(1950), but Benton goes further, in advocating an approach that places
rights in a much wider context, and asks, for example, why restraint on the
actions of others should be so central to well-being, and what the implied
sources of harm might be.
When viewed in truly universal terms, the answer to this question extends
to the system of trade regulation disadvantaging the poorer countries of the
world, tied to export-led growth, a high reliance on imports, low public
spending and gross indebtedness; a package that siphons off a large propor-
tion of their available revenue. The broader context of rights and possible
harms would also take in the ‘organised non-liability’ endemic in the ‘risk
society’ (Beck, 1992), linked to damaging occupational histories and
environmental hazards, both of which are most likely to characterise life at
the lower end of the class hierarchy. These harms are not readily addressed
by an individualised regime of rights, and even assuming that they were, the
liberal model carries the implied assumption that if secured from such harms
all individuals have the capacity to construct for themselves a fulfilling life.
Benton argues that this view neglects both the impact that unequal access to
18 Political economy and rights
material, cultural and educational resources can have on such a capacity,
and the interpersonal relations and community bonds that for many are the
source of meaning in life. His argument closely connects with attempts to
develop a more enabling approach to rights by a focus on capabilities (Sen,
1999; Nussbaum, 2000), and leads to Benton’s alternative vision for a
regime of rights that recognises the underpinnings of effective presence and
agency in society, and the interpersonal relationships on which it builds.
The second chapter to adopt the political economy approach also evokes
questions about the nature of interpersonal and community dependencies in
the context of pension rights. It is, in addition, concerned with larger-scale
issues shaping the generation and commitment of resources to address the
pressing problem of provision for old age. If we accept Turner’s bodily
frailty and social precariousness as a basis for claims to rights, none could
seem as unquestionable as a right to support in old age, yet the basis and
substance of pension rights has become a pressing problem in contemporary
capitalist society. Truly universal state pensions tend to take the form of
minimal, residual provision, though ageing populations in the developed
world mean this still poses a huge challenge to national exchequers. Occu-
pational pensions have become less and less viable, and in private schemes,
while there is a right to be fairly and honestly treated, the market risk of
investing is borne by the contributor, and there is no guarantee of a pension.
The variable mix of public and private provision in operation can be
construed more readily as a system of civic stratification (as outlined in
Chapter 4) than as a viable system of universal entitlement, especially when
tax relief on private schemes, which favours wealthier savers, is taken into
account.
At the heart of the pensions problem lies the question of the relationship
across generations and the nature and degree of responsibility that the cur-
rent taxable population carries for the contemporary elderly. In a tax-based
system, each contributor pays not for their own needs in old age, but for the
needs of the prior generation. When the age cohorts are dramatically out of
balance this relationship either imposes a huge responsibility on a small
cohort or undermines the entitlements of the larger cohort. So what does a
system of cross-generational justice look like in these circumstances, and
who bears the cost of a socially responsible approach to old age? When
pensions are considered in this light, the language of rights seems rather
distant, and the approach serves instead to highlight the difficult configur-
ation of rights, resources and the location of responsibility. The temptation
for states to privatise all provision, thereby opting for a system of self-
responsibility, is immense, but as Blackburn points out, an expensive
solution given the marketing and salary costs of private providers. It would
also be a classic example of the desocialised, atomised individual represented
by the classical liberal model of rights discussed in Chapter 1, and is of
course grossly inequitable.
The third example of a political economy approach to rights also grapples
 Political economy and rights 19
with the problem of ageing, but in relation to the right to physical care. The
issue of a right to care is in some respects more complex than that of
the right to a pension, requiring the recognition of caring as fundamentally
relational, but separable from other aspects of a social relationship, and
identifiable as a form of work. As in the case of pensions, making the
philosophical case for a right to care is rather less challenging than the
implementation of such a right in practice. This requires not only the accept-
ance of a universal principle, as in the ‘frailty’ theory of rights, but also the
delivery of particularised provision, according to differing dependencies
and vulnerabilities. Again like pensions, the place of each individual in
the underpinning roles and relationships will shift as they move through the
life course. As Chapter 3 makes clear, the ensuing nexus of rights, relation-
ships and responsibilities will be historically and culturally variable, and
care is therefore to be analysed as an embedded feature of contrasting
systems of exchange, reciprocity and obligation premised on very varied
socio-economic arrangements.
Of course, the recognition of a right to care also entails a more difficult
decision to identify cases in which the resource investment may be too great
when weighed against the diminishing benefits. In this sense, the right to care
requires judgements of relative desert, which are partially resource driven,
and which will be resolved differently according to the social, economic
and cultural context. The comparative approach advocated in Chapter 3 is
particularly revealing in this respect, and demonstrates how the concept of
rights need not be confined to legally based claims and calls on the state. It
may equally operate in the context of culture and tradition, based, for
example, on kinship obligations and expectations, often gendered, that
operate to varying degrees in different societies. We might also find that
several systems of provision operate simultaneously in any given society,
embodying different types of exchange relations and yielding multiple
and possibly conflicting expectations and obligations. Different systems will
also raise their own problems with respect to equity, standards, monitoring
and respect for the rights of both givers and receivers of care.
1 Do we need rights?
If so, what sort?
Ted Benton

In what follows I want to consider the implications of a long tradition of

radical scepticism about rights. The arguments of the sceptics have a number
of rather different sources and targets, some turning on the effects, intended
or not, of the institutions through which rights are allocated, some calling
into question the conceptual foundations of rights discourse. Here I try to
bring together the main lines of argument against rights – specifically
‘human rights’ – to see how effectively they address current social and polit-
ical realities. I conclude by considering what alternative normative frame-
work or institutional order might achieve what the prevailing discourses and
practices of ‘rights’ arguably fail to do.

Liberal rights: the classical view

The classical (i.e. seventeenth- and eighteenth-century) advocacies of ‘nat-
ural’ rights, or ‘rights of man’, have well-rehearsed limitations in terms of
their implicit exclusions, but these are not central to the arguments I want to
develop here. For our purposes there are two main moral intuitions in the
classical discourse of rights: (a) the moral priority accorded to the well-being
of the individual person; and (b) the notion that all individuals have equal
value, are equally worthy of respectful treatment. In the classic statements
there is some diversity in the ways individual well-being is characterised.
These often appear as differences of emphasis, but the emphasis does have
implications. Sometimes the emphasis is on the vulnerability of individuals,
so that the moral requirement is to protect them from abuse. Sometimes the
emphasis is on individuals as agents, capable of autonomously devising a
life-plan and living it. Here the moral requirement is to remove obstacles in
the way of their autonomous action.
Irrespective of diversity in conceptions of the good for individuals, the
twin moral intuitions of classical liberal political philosophy imply advocacy
of an authoritative normative framework, with the concept of rights at its
core. The well-being of each citizen is to be assured by a legal order that
restrains both sovereign and citizen with regard to those acts that might
impinge on it: citizens are defended in their freedom of action in so far as
22 Political economy and rights
their exercise of it is consistent with an equal freedom on the part of others.
To be thus protected in their circumscribed sphere of autonomy is the right
of each citizen:

Liberty consists in being able to do anything that does not harm another
person. Thus the exercise of the natural rights of each has no limits
except those which assure to other members of society the enjoyment of
these same rights; these limits can be determined only by law.
(Article 4 of the French Declaration of the Rights of Man and Citizen,
1789)

Depending on how the well-being of the individual is conceptualised, I speak

of ‘passive rights’ (with the focus on protecting individuals from abuse), and
‘active rights’ (with the focus on their pursuit of a self-chosen life-plan).
For the arguments that follow, it will be helpful to draw attention to some
of the further underlying assumptions of this classical liberal discourse of
rights. The first is that self-identity is a ‘given’ property of individuals
independently of their social participation, as, in the case of the requirement
for active rights, is the capacity to devise and live out a life-plan. A second,
closely related, assumption is that, given protection from interference by
others, each individual can achieve their own well-being independently of
those others: that is to say, ‘well-being’ is a non-relational property of
individual persons. A third assumption – otherwise why do we need an
authoritative apparatus to restrain it? – is that citizens and the sovereign are
disposed to abuse or obstruct one another in the exercise of their basic
freedoms. A fourth is that a clear distinction can be made between those acts
(‘self-regarding’) that do not risk infringing the well-being of others, and
those (‘other-regarding’) that do carry such a risk, and so can be legitimately
restrained. The fifth, and, for our purposes, final, assumption is that the
harms from which individuals need to be protected, or the obstacles in
the way of their fulfilment of their life-plans, arise from the intentional
acts of other individuals, or the sovereign power (usually thought of as a
‘super-subject’, or leviathan).

Radical scepticism about liberal rights

Now to the arguments of the radical sceptics about rights. Most of these (at
least, those whose arguments I want to explore here) share with the liberal
tradition at least two normative intuitions. These are: a recognition of indi-
vidual persons as bearers of intrinsic value; and a commitment to the equal
value of each person. However, there are differences in the way individual
persons are conceptualised, and, especially, in the way these critical traditions
think about individual well-being. As we shall see, the significance of indi-
vidual vulnerability, as well as the moral importance of the autonomous pur-
suit of one’s own good, may be endorsed, but with rather different outcomes.
 Do we need rights? 23
The antagonism of interests
The first step in the sceptical critique is to ask why securing the well-being of
each individual should require the allocation of basic rights, conceived as
restraints on the actions of citizens with regard to each other, and of the
sovereign power with respect to the citizens. This can only be because it is
assumed that either the sovereign or other citizens, or both, would otherwise
be liable to abuse or invade the sphere of autonomy of each individual. It is,
in other words, assumed that there is an endemic conflict of interests
between individual citizens and between them and the sovereign power. But
these assumptions can be seen as appropriate only to a specific historical
period or form of social order. Alternative forms of social coexistence can be
imagined in which individual citizens were not disposed to abuse one
another, or to interfere with one another’s pursuit of their chosen life-plans,
and in which there was no public power set over and against the citizens.
Some socialist, ecological and anarchist utopias postulate such a way of
social living. Such a mode of life, if it were possible, would be one in which
the well-being of each would be secured spontaneously, without need of the
discipline of an apparatus of rights and justice. It was the philosopher David
Hume who famously specified two key conditions for such a state of affairs:
unlimited abundance and mutual benevolence.

Personal identity –given or achieved

Below I consider in more depth the feasibility of this most radical version
of the sceptical argument. First, however, it is necessary to consider some
more specific conceptual and empirical issues surrounding the liberal view
of rights. First is the conception of personal identity as a ‘given’, as a prop-
erty of individuals prior to social participation. This is implicit in classical
notions of a ‘state of nature’ prior to the establishment of a social contract
that underpins the authority of the public power and its laws. It is also
present in the work of more recent political philosophy, most influentially
in the Rawlsian notion of an ‘original position’ behind an imagined ‘veil of
ignorance’ (Rawls, 1971). By contrast, sociologically informed thinking
about personal identity understands it not as a ‘given’, but as an achieve-
ment. It is an achievement won in the course of participation in social
practice and through reflection upon it. Personal autonomy, then, is an
achievement made possible only where the developing individual has the
interpersonal, emotional-relational, cultural-linguistic, social structural and
material-ecological conditions of life that sustain and favour it.

Life-plans and how to live them

Connectedly, the ontology of the liberal view of active rights supposes that
each individual is able to devise and to live out a life-plan, as long as she or
24 Political economy and rights
he is not interfered with by others. But there are several respects in which
this view is too sociologically thin, or ‘minimalist’ (respects that parallel
those in which the neo-liberal view of the minimal state is too ‘thin’). First,
to devise a life-plan that is in the required sense one’s own life-plan presup-
poses the achievement of autonomous self-identity. This, as I have just sug-
gested, has complex cultural, social and ecological conditions, failure or
neglect of any of which may lead to failure to acquire the capacity even to
devise a coherent plan of life. Second, for a life-plan to be devised as a
meaningful expression of the will or identity of its agent (and this is surely
required if it is to bear the moral weight attached to it in liberal thought) it
must be one chosen or constructed within a cultural world that includes a
variety of such visions and the materials for comparing and evaluating them,
together with access to the personal skills and competences for appreciating
and choosing: in short, a rich and diverse public culture and access of indi-
viduals to it (at the very least, a broadly based education, accessible to all).
The third consideration has its classic expression in the work of
Durkheim. No fully human life is possible without some connection with the
life of society. Even the hermit or religious recluse can make sense of their
self-exclusion from society in terms drawn from the wider stock of cultural
resources, and the monastic life is itself a form of society. So the life-plan I
devise will of necessity be one that includes a certain vision of my relation-
ships with others – with a sexual partner, parents, offspring, siblings,
friends, acquaintances – and with a range of favoured experiences – artistic
creation, a certain sort of work or career, inhabiting a certain chosen phys-
ical or cultural environment, playing or watching a certain sport or game,
living according to a chosen set of moral beliefs and so on. Others, when we
start to give concrete form to the idea of a life-plan, figure not just as poten-
tial obstacles to our project, but, instead (or also) as indispensable partners,
associates and conditions for it. We cannot, in other words, have a life-plan
that is not inseparably intertwined in its very constitution with the living out
by others of their life-plans.
This suggests that autonomous living presupposes a deeper commonality
of shared understandings and purposes. Durkheim (1951) used statistical
variations in suicide rates to argue a closely related point. A society that
promotes individual egoism at the expense of such deeper commonalities
risks becoming one in which individuals are incapable of linking their own
private purposes with wider social meanings. Durkheim’s claim is not just
that this is dangerous for the society, but that it is dangerous for the indi-
vidual: that what sustains our ability to make sense of our own lives and
their purposes is their connection with the life of the wider society. Lacking
this sense of the place of our own life-plan in the communities to which we
belong, we are vulnerable to a loss of meaning in our own life even to the
point of finding that life not worth living. Of course, there are hazards for
the society, too, in the shape of a drift towards instrumentalism, fragmenta-
tion and the corruption of public life, on the one hand, and increased
 Do we need rights? 25
vulnerability to the appeal of demagogic and totalitarian versions of
community, on the other. Even as early as the latter part of the eighteenth
century, Smith and Ferguson, luminaries of the Scottish Enlightenment,
viewed the emergence and spread of the egoistic ‘commercial society’ with
some foreboding for just these reasons.

Inequality, dependency, property and rights

The fourth reason why we need more than just non-interference to be able to
devise and live out our life-plans is the best known. The classic location for
this argument is Marx’s (1975) ‘On the Jewish question’, but it is widely
diffused in subaltern culture in such sayings as ‘property is nine points of
the law’. Marx’s dictum that all rights resolve into property rights is a
polemical exaggeration – and probably was even in Marx’s day – but there is
an important kernel of truth in it. There are two interconnected aspects.
First, to be able to implement a life-plan requires cultural and material
resources. In a society characterised by massive inequalities in the distribu-
tion of resources of all types, there can be no such thing as equality in the
ability to live out our life-plans. My life-plan might be to sample the cultures
and cuisines of the world in a life of perpetual tourist extravagance, without
the distractions of work and social obligation. An unemployed and demoral-
ised miner or steel worker might aspire to have secure and meaningful work
to be able to provide for his family and regain self-respect. A single mother
of pre-school children might have a life-plan that includes going to uni-
versity, having a richer social life, having time to read or to see friends. The
life-plans we are able to devise are constrained and shaped both by our
cultural horizons and by our actual placing in society, with its current pat-
tern of fulfilments and frustrations. But in each case our ability to live out
whatever plan we might devise will be conditioned by our access or lack of
access to resources.
This is true however we think of well-being. If the emphasis is less on the
active aspect of living out an autonomous life-plan than on the recognition
of individual vulnerability, then here, too, distributive inequality radically
qualifies the role of rights. If sound and secure living conditions, clean drink-
ing water, effective waste disposal systems, unpolluted air to breathe, nour-
ishing food, daily exercise and access to aesthetically uplifting environments
play a significant part in sustaining health (and there is plenty of evidence
that they do), then most of the world’s population lacks some, and some of
the world’s population lacks all, of these basic requirements. The aspiration
to health equality remains a goal of the World Health Organization and of
many national governments, but we rarely hear the demand for provision of
the necessary conditions for health articulated as a human right. Here, too,
the conceptual assumption is that health can be taken as a given ‘normal’
state. Sickness and disease are hazards to be met by provision of public
health services that aim at treatment to restore us to ‘normal’ health. Equal
26 Political economy and rights
access to health care in this sense is the aspiration sustained by the more
thoroughgoing liberal rights discourse. It is, of course, immensely valuable,
but it fails to address the deeper social inequalities in vulnerability to poor
health and premature death. I return below to a fuller discussion of the
issues posed by this.
Marx’s argument about rights and property is certainly about inequality,
but it is about inequality in a more profound sense than simply inequality of
access to material and socio-cultural goods. It is also about the workings of
the particular inequalities of power that characterise a capitalist society.
Marx enthusiastically endorsed the rights that accompanied the emergence
of distinctively modern political systems: freedom of expression and asso-
ciation, freedom of conscience and the positive rights slowly won over
generations of struggle to vote, to play a part in the process of democratic
decision-making. But Marx also drew attention to the gap between this
(limited) political emancipation and full human emancipation. We are
familiar with the extent to which wealthy and powerful interests are able to
shape the agenda of public debate as well as intervene in the processes of
policy formation and legislation. Even where the right to vote is universal,
some votes count more than others.
More than this, Marx emphasises the contrast between the political realm
of free expression and equal rights and the realm of capitalist employment
relations in which workers are subject to the dictatorial authority of the
employer. This is no mere contingency, but is implicit in the employment
relation itself. In selling their labour time to their employers, workers hand
over, as a commodity, to its new owner the power of disposition over their
mental and bodily activity. The wage relation thus differs from slavery in
that loss of self-ownership is limited to working hours. The market in labour
also means that the worker may have some choice of employer, but not, in
general, the choice not to sell her or his labour time to someone. To the
extent that those who do not own productive resources are materially
unable to meet their subsistence needs other than by entering the labour
market, they live under the sway of one or other members of the employing
class. Their autonomy is constrained, and, during working hours, given
wholly over to the employer. This is a form of economic inequality that
implies not just differential access to resources of various kinds, but also
relations of structured domination and subordination. The life-plan of the
employer has at its disposal the life-activity of many fellow citizens, who, in
turn, lose to him the power of autonomous pursuit of their own well-being
for at least that part of their lives that has been sold.
Of course, this is not the only form of dependency relationship. In Marx’s
day domestic service was more widespread than today (it was, of course, a
feature of Marx’s own household) and in many respects it entailed an even
deeper form of dependency than wage labour. Women, too, where excluded
from the labour market by customary expectations, by a gendered division
of domestic labour and child-care, by legal restrictions on their employment
 Do we need rights? 27
or by discrimination in employment, have suffered a double dependency:
directly on their husband or partner as well as indirectly on his employer.
Interestingly, all these forms of socio-economic dependency relations were
seized upon by the opponents of the extension of political rights to women,
servants and the propertyless on the grounds of the loss of the capacity of
autonomous judgement entailed by these relations. The Marxian or feminist
argument is a simple inversion: if we desire real, as distinct from merely
formal, equality of political rights, then these relations of dependency and
subservience must be abolished.
The general outcome of this line of thought is to emphasise the difference
between the juridical allocation and recognition of universal rights, and the
very unequal de facto ability of individuals to exercise the rights they are
formally allocated. Equality under the law is compromised by unequal abil-
ity to pay for legal advice and representation, and by the deep cultural gulf
between a specialised legal profession and many of those who might other-
wise benefit from the protection of the law. The law protects the property of
the poor no less than that of the wealthy, but in protecting the property of
the wealthy, it maintains the division between the poor and the wealthy. So,
to the extent that the discourse of universal rights is proclaimed and legally
enforced in a society characterised by endemic social inequality, it functions
as a means of both legitimating and reproducing those inequalities. It is in
this sense and under these conditions that rights do resolve into the rights of
property.

What harms can rights protect us from?

So far I have explored some of the arguments of the radical critique of liberal
rights as they bear upon the way individuals and their well-being are
conceptualised. Essentially the case for the prosecution is that the classical
liberal view takes too little account of the social conditions under which
individuals develop and pursue their life-purposes, and too little account of
the interdependence of individual life-plans and their necessary connection
with the wider society. At its strongest, the case against liberal rights makes
it out to be a form of legitimation of inequality and injustice. This is because
its failure to theorise the ways in which social and economic relations affect
the ability of individuals to envisage and realise the good for themselves
renders the human cost of inequality and dependence near unthinkable. Of
course, there are responses to these harsh criticisms from within the liberal
traditions, and I will return to consider them at a later stage in the argument.
For now, it is enough to repeat that the argument so far calls into question
a certain way of thinking about individuals and their well-being. It is not
an argument against the moral priority liberalism accords to individual
well-being.
The next step in the argument is to consider the classical liberal view of
the harms from which individuals are at risk. The liberal discourse of rights
28 Political economy and rights
seeks to restrain both citizens and the public power with regard to those acts
that might harm other individuals, or infringe their autonomous pursuit of a
life-plan. The protections it offers to individuals cover such abuses as might
result from the (other-regarding) intentional acts of other individuals or the
sovereign power. This focus on abuses resulting from intentional acts
eclipses and so renders at best marginal several sorts of avoidable harm to
which individuals are susceptible.
First, both public bodies and private companies that provide goods or
services may do damage to consumers, employees or others, such as near
neighbours. This category may include industrial diseases and injuries, food
poisoning, long-term ill-health (e.g. as a result of tobacco smoking) and
death and injury resulting from traffic accidents (ferry, coach and air dis-
asters in the tourist industry) and from specific sources of environmental
pollution (factory discharges, release of hazardous materials, such as at
Bhopal, Seveso and Chernobyl). In a legal order devoted to identifying indi-
vidual responsibility, the introduction of a robust regime for assigning cor-
porate responsibility faces considerable difficulty. This is to some extent
connected to the disproportionate power of the corporate sector and public
bodies themselves to shape legislation. It may also be in part linked to a
prevailing set of (liberal) cultural assumptions about the nature of crime and
criminals: political discourse on crime and media representations focus on
individual acts of theft and violence, crimes of the mad, the powerless, the
homeless and the stigmatised, not those of the rich and the powerful. No
doubt the difficulty of establishing the requisite causal connections between
an identifiable institutional practice and the harms alleged against it is also
an obstacle. But except in the case of strict liability offences, there is also a
requirement to establish corporate knowledge and consequent culpable neg-
ligence. This has been a particular difficulty faced by attempts to pursue
legal claims on behalf of smokers. The tendency has been for courts to seek
some individual office-holder to whom the relevant responsibility has been
assigned, and whose negligence can then be attributed to the corporation.
This has produced the paradoxical outcome that in some cases firms without
clearly defined allocations of responsibility for safety or environmental
health have escaped conviction.
Natural disasters, so-called ‘acts of God’, constitute a second category of
harms to which we might be vulnerable. Flash floods, landslides, climatic
anomalies, epidemics and pandemics of infectious disease, earthquakes and
so on take a heavy toll of human life. The tsunami of December 2004 is a
terrifying example, claiming at least 300,000 lives directly, but leaving in its
wake emotional distress and economic hardship on an unimaginable scale.
Hazards of these kinds are often seen as ‘external’ risks by sociologists as
well as the wider public. In the work of Beck (1992) and Giddens (1994),
for example, these risks and hazards are represented as characteristic of
earlier ‘traditional’ societies, displaced by the ‘manufactured’ risks of indus-
trial modernity. Of course, such disasters continue to threaten industrial
 Do we need rights? 29
societies, too, but to characterise many of them as ‘external’ is also open to
question. Floods, landslides, epidemics and climate change may be at least
partly caused by human social and economic activities. Even where this is
clearly not the case, as with the tsunami, the impact on human communities
may vary very considerably, depending on the geographical location of settle-
ments, the existence of warning and evacuation procedures and the state of
readiness of emergency services. Whether these take into account known
hazards or are effectively resourced will often depend not only on the prior-
ities and resources of government, but also on the socio-economic status of
the communities at risk. In the case of the tsunami, an effective warning
system had been in place to cover the Pacific, so the provision of a parallel
system to cover the areas hit by the tsunami was presumably quite technically
feasible.
A third sort of harm or hazard not easily acknowledged in the terms
of classical liberal political philosophy arises from participation in ‘given’ or
taken-for-granted modes of life. These are not chosen, but flow as a matter
of course from the prevailing economic and social power relations within
which people live out their lives. These harms and hazards are continuous
with those of the first category, but are roughly distinguished by their
less specific or identifiable sources. They can be thought of as general
consequences of what Beck calls ‘organised non-liability’.
There is empirical evidence connecting the incidence of a range of injuries,
diseases and mortality rates with occupational life-histories, though these
may not be attributable to a specific period of employment with an identifi-
able employer. More generally, there are very robust disparities in morbidity
and premature death between the social classes. Environmental social
movements in many countries have provided evidence of the ways in which
poor living environments also correlate with class and ethnic divisions.
Working-class residential estates are sited downwind of polluting factories
or close to incineration plants, are more likely than are upmarket develop-
ments to be built on potentially toxic landfill sites, are likely to have less
secure and effective pest control, waste disposal and fresh water supplies.
Engels documented much of this in the big industrial cities of the 1830s and
early 1840s, but the US environmental justice movement, the Silicon Valley
Toxics Coalition and countless other organisations across the globe testify
to the continuing validity of the analysis.
There are other examples. The prevailing system of food production, pro-
cessing and distribution entails a class-skewed pattern of dietary imbalances
and associated health risks. The design of modern towns and cities premised
on general access to the private car as the dominant mode of transport not
only contributes significantly to air pollution, but favours lifestyles in which
physical exercise is effectively squeezed out of daily life, and the convivial
sociability of public open spaces is replaced by a threatening arena of real or
imagined criminality.
Yet another source of harm derives from the intentional acts of public
30 Political economy and rights
powers. The harms belonging to this category are the unintended and
usually unwanted, but often foreseen, consequences of state policies. One
currently topical example is that of war, and the fate of its victims character-
ised in the official discourse as ‘collateral damage’. The offensive launched
against Iraq in the spring of 2003 began with a bombing raid on Baghdad
proudly boasted to inspire ‘shock and awe’. In the subsequent land invasion
and occupation many thousands of civilians have been killed, and countless
others dreadfully maimed. Cluster bombs, known to cause widespread
death and injury, especially to children, were extensively used by the UK
military. One city, Falluja, was effectively razed to the ground by the use of
massive firepower and chemical weapons, on the excuse that it was a
stronghold of ‘insurgents’. Despite repeated claims that every effort had
been taken to avoid civilian casualties, independent estimates give figures
ranging from 10,000 to more than 100,000 deaths by the time of writing.
The occupying forces have not deemed it worthwhile even to count these
deaths and other casualties.
During the period of occupation photographic evidence came into the
public domain evidencing instances of inhumane and degrading treatment
amounting to torture of Iraqi captives in Abu Graibe prison. Evidence later
emerged of similar treatment meted out to captives by UK personnel. These
images were immediately relayed through the world media, and induced
moral outrage and expressions of deep regret and condemnation by the
political leaderships of the occupying forces. Individual perpetrators were
quickly brought to well-publicised trial and conviction. The abuses of
captive hostages committed by some groups of insurgents were also given
high-profile media coverage and intensive moral vilification.
The contrast between the moral outrage rightly evoked by inhumane
treatment of prisoners and hostages, on the one hand, and the sanguine
expressions of regret at civilian casualties on such a vast scale (outnumber-
ing the 9/11 casualties many times over), on the other, is stark. This no doubt
reflects to some extent widely held cultural presumptions and also, perhaps,
the way the images connected with particular media framings of events. But
the central concern of liberal political philosophy, and the legal order linked
to it, with harms directly resulting from intentional acts of individuals, is
strikingly at work. The deliberate infliction of suffering and humiliation on a
captive subject is evil and must be punished by law. The killing and dreadful
maiming of many tens of thousands of non-combatant men, women and
children as a by-product of an invasion by a coalition of liberal democratic
states is regrettable, but not even sufficiently significant to merit recording it.
Another example is more contentious but also perhaps more pervasive.
The global system of trade regulation, investment and development aid –
symbolised by the trio of World Trade Organization (WTO), World Bank
and International Monetary Fund (IMF) – enforces a neo-liberal model of
economic policy across the world. Institutional dominance of the richest
countries is widely thought to shape the policies of these organisations in
 Do we need rights? 31
favour of the interests of those countries and the transnational corporations
that remain linked to them. The IMF’s prescriptions of export-led growth
combined with cuts in public spending have arguably had massively negative
effects on the poorest groups in the countries affected by them, depriving
people of desperately needed public services, and driving small-scale subsist-
ence agriculturalists off the land. In the case of the World Bank, its record of
funding large-scale prestige projects, often at deep cost to indigenous popu-
lations and local environments, is well documented. There is also a well-
developed critical literature on the way the GATT agreements and practice
of the WTO sustain global trading relations that disadvantage poorer coun-
tries, and undermine attempts of nation states to maintain environmental
standards and raise working conditions. A currently topical case is the pres-
sure exerted by the USA and WTO to globalise environmentally hazardous
genetically modified crop technologies against democratically expressed
popular sentiment in many countries.

The radicalisation of liberalism: from negative to

positive rights
At least some of these elements in the radical case against the classical rights
discourse have evoked a response, stimulated by the rise of mass labour
movement agitation from the mid-nineteenth century onwards, from within
the liberal tradition. Liberal social and political theorists of this period have
generally recognised the implications of social and economic inequality for
the enjoyment of rights. This was already clear in the later work of J. S.
Mill, and, after him, of Hobhouse (1922). The struggles that eventually
brought extensions of democratic political rights to male workers and
finally to women led at the same time in the countries of Western Europe to
a extension of publicly provided education. From the political right this
was seen as a necessity if the workers were to be persuaded to give their
allegiance to the existing property order, but in any event literacy was an
increasingly valuable asset in realising the aspirations of organised workers
and women suffragists. But the Second World War provided the most effect-
ive stimulus, as mass mobilisation for the war effort required assurances
that there would be no going back to the mass unemployment and insecur-
ity of the pre-war period. Practically, the post-war extension and consoli-
dation of welfare states in the main combatant nations, with universal
provision for social security, health and education, gave institutional form
to the aspirations of a liberalism now radicalised and revitalised by demo-
cratic socialist thinking, and challenged by increasingly powerful commu-
nist mobilisation in those Western countries that had experienced Nazi
occupation.
Perhaps the most fully developed and influential intellectual statement of
the new liberalism was the work of T. H. Marshall (1963). In his classic
essay of 1949 he proposed an extension of citizenship to include positive
32 Political economy and rights
economic and social rights, indirectly vindicating Marx’s insight that full
emancipation would necessitate a transcendence of the division between
state and civil society. However, Marshall stops short of a thoroughgoing
egalitarianism in the social and economic spheres. Instead, liberal demo-
cratic welfare capitalism is for him an institutional framework within which
continuing tensions between class-divided wealth creation and compensatory
citizenship rights could be contained. The near-simultaneous UN Declar-
ation of Human Rights works within a closely similar frame. In addition to
reiteration of the classic liberal rights of man and citizen it asserts:

Everyone has the right to a standard of living adequate for the health
and well-being of himself and his family, including food, clothing, hous-
ing and medical care and necessary social services, and the right to
security in the event of unemployment, sickness, disability, widowhood,
old age or other lack of livelihood in circumstances beyond his control.
(Article 25)

The universal right to education, at least at the elementary stage, is also

asserted, as is the right to participate in the cultural life of the community,
enjoy the arts and share in scientific advancements and their benefits. In a
further significant shift beyond the generally ‘negative’ character of the pro-
tections offered in the classic liberal proclamations, there is a clear recogni-
tion that enabling members of society to enjoy the exercise of their rights
involves the positive allocation of resources:

Everyone, as a member of society, has the right to social security and

is entitled to realization, through national effort and international
co-operation and in accordance with the organization and resources of
each state, of the economic, social and cultural rights indispensable for
his dignity and the free development of his personality.
(Article 22)

Significantly, as in Marshall’s thought, the institutional order of liberal

democratic capitalism is clearly discernible despite the normative universal-
ism of the text: the health and well-being of ‘himself and his family’, the
assertion of trade union rights, paid holidays, equal pay, limitation of work-
ing hours and so on. Wage labour, the nuclear family and gender division of
labour, it seems, will not be challenged, but they will be regulated and the
disadvantages attaching to them ameliorated or compensated by the public
power.
In those Western societies where social democratic parties have sustained
large-scale popular support the ameliorations and compensations have been
very significant:

• free, universal public education;

 Do we need rights? 33
• state-sponsored health care, provided universally and often free of
charge at the point of need;
• state-sponsored public service broadcasting, often with a legal require-
ment for unbiased reporting of current affairs, and independent of
government control;
• legislation outlawing discrimination on grounds of gender, race and
ethnicity, disablement, sexual orientation and religious or other beliefs;
• legal immunities for official trade union disputes, and general rights for
trade union membership and activity;
• a minimum wage and, in some countries, entitlement to consultation
by management on a range of company policies affecting workers;
• health and safety standards set and enforced by government-sponsored
bodies;
• general environmental standards and planning regulations;
• social security benefits offering an economic safety net in the cases listed
in Article 25 of the Universal Declaration;
• access to legal aid.

Limitations of the liberal response

The problem of inequality

Does this mean that the radical critique of liberal rights no longer has pur-
chase? The answer here must be ‘no’, for two main reasons. The first takes us
back to the key point that the basic structural inequalities and relations of
power and property that characterised earlier phases of capitalist develop-
ment remain in place and are in important respects more intractable than
they ever were. At their best, the compensations and ameliorations provided
by welfare capitalism were only partially successful. Public education has
provided room for significant social mobility, but has still been predomin-
antly a means of reproducing class relations in each successive generation. In
general, discriminatory practices in employment have been difficult to moni-
tor and eliminate, and minimum wage rates have generally been set at levels
acceptable to employers’ organisations and have often led to a lowering of
wages to the minimum standard. Health and safety standards are perpetu-
ally under pressure in strongly competitive environments. Despite general-
ised rights to trade union membership, many employers are able to resist
union organisation effectively, and research persistently reveals very high
levels of bullying and intimidation at work. The increasing recourse to more
individualised assertion of employment rights through industrial tribunals
provides some recompense, but often at the cost of subsequent employment
discrimination.
If the reach of social democratic liberalism is limited even in the countries
where it has been most fully implemented, this is still more so in most of
the rest of the world, where social democracy has had limited impact, or
34 Political economy and rights
where patterns of clientalism, corruption, authoritarian rule or economic
and political dependency have given little space for easing the social, human
and ecological costs of capitalism in the raw. Given this very limited
geographical scope of social democratic liberalism in practice, the radicalised
liberalism of the Universal Declaration and subsequent documents stands as
a continuing indictment of current practice across the world, rather than, as
with the classic liberal declarations, an ideological mystification of it. This
is, arguably, a situation reinforced and intensified by the increasing role of
transnational economic institutions and flows of goods, services and capital.
As economic and political power shifts to the transnational corporations,
capital markets, the WTO, IMF and World Bank, the capacity of progressive
social movements to influence policy at nation state level is diminished,
along with the room for manoeuvre of national governments themselves.

The vulnerability of progressive liberalism

This leads us to the second main reason why the critique of liberal rights still
has purchase. This is that in leaving largely untouched the prevailing con-
centrations of economic and political power, social democratic welfare
states have remained vulnerable to elite pressures to roll back gains made by
generations of progressive reform. Since the 1970s this pressure has become
more intense and effective in the heartlands of social democracy. A full
analysis of this would be far beyond the limitations of this chapter, but a
combination of increasing power on the part of organised workers and the
slowing down of the post-war boom put profits under pressure, leading to
fiscal crises. Tensions between more marginal, unorganised workers and
those outside the labour market, on the one hand, and organised workers
able to maintain incomes through industrial power, on the other, provided a
popular base available for mobilisation by a resurgent ‘new right’, commit-
ted to a return to the free-market economics and minimal state of the clas-
sical liberal tradition. At the level of ideology, the classical tradition’s
association of freedom with property rights was deployed in a persuasive
attack on the burden of taxation as an authoritarian imposition by the state,
restricting the right of individuals to spend their own money as they chose.
As far as the corporate sector was concerned, the key requirements have
been the weakening of trade union power and removal of state ‘interference’
and ‘red tape’. The collapse and discrediting of the state centralist regimes of
Eastern and Central Europe, together with the increasing internationalisa-
tion of capitalist economic dominance, have consolidated the rule of the
neo-liberal revival, demolishing what little had been achieved in the direc-
tion of reform outside the social democratic heartland, and putting under
severe pressure the framework of welfare and social security within it.
 Do we need rights? 35
Another world is possible
The rule of neo-liberalism is not without its critics and opponents. As
a century or more of reforms are dismantled, the purchase of the radical
critique of liberal rights and the society whose inequalities and abuses it
legitimated becomes ever more apparent. New, more diverse, broadly based
and open-textured forms of resistance are emerging in the shape of coali-
tions of social movement organisations, non-governmental organisations,
social forums, international peace and environmental activism, and import-
ant developments in popular participation in some of the countries of Latin
America. Even at the level of international economic governance, the
hegemony of the richest nations is under challenge.
So the question of alternatives seems, at last, to be back on the agenda of
international politics. What sort of alternative can be envisaged? Must it be
one in which social relationships are regulated by the discourses and appar-
atuses of rights? The argument thus far has been premised on two moral
intuitions shared by both liberalism and the radical critique in the form in
which I defend it. These are the moral priority accorded to human indi-
viduals and their well-being, and the commitment to equality of respect for
all individuals. For reasons not presented here, I think that the first of these
intuitions needs to be reconciled with an extension of the scope of moral
concern to include non-human beings, but still the centrality of the concern
with individuals is retained. The argument so far has been to the effect that
these shared moral intuitions can only be made real if a range of inter-
personal, social structural, cultural and ecological conditions are met. The
prominence of the discourse and apparatus of rights is explained by its
emergence within a society in which those conditions are generally not met
spontaneously. Hence the conceptual impoverishment of the classical trad-
ition, and the minimal, ‘negative’ character of the protections it offers. The
key limitations and vulnerabilities of the progressive radicalisation of the
tradition of liberal rights are, I have suggested, a result of the persistence and
internationalisation of the concentrations of economic and political power
that both generated the requirement for rights and denied the conditions for
them to give the protections they promise.
This takes us back to a fundamental ambiguity in the radical critique.
Marx has been widely read as advocating a future society in which the
conditions for spontaneous mutual respect would be met, and the need for
rights transcended. But what might those conditions be? Hume, as we saw,
mentioned two: benevolence and abundance. Steven Lukes (1985), in an
influential critique of Marx’s moral thinking, adds two more: value con-
sensus and perfect knowledge of the effects of our actions on the well-being
of others. Even given benevolent intentions, we might harm others through
ignorance.
A society in which all four prerequisites for spontaneous mutual respect
and harmony were actualised seems somewhat unlikely, and might not be
36 Political economy and rights
desirable even if possible. A society of abundance would be one in which some
of the causes of competitive antagonism might be eliminated, but we deni-
zens of contemporary consumer society know that, as Adam Smith (1891)
once put it, ‘the desire of the conveniencies of building, dress, equipage, and
household furniture, seems to have no limit or certain boundary’. Only if
deeper socio-economic, cultural and psychological roots of escalating con-
sumer demand were addressed might abundance bring some amelioration of
mutual antagonism. But abundance itself, certainly a feature of Marx’s
vision of the future society, now looks distinctly problematic in view of the
ecological unsustainability of even current levels of material production and
consumption. As for benevolence, the optimistic view that our dispositions
to mutual antagonism and aggression can be explained in terms of the frus-
trations and deprivations of an economic and social system premised on an
individualistic struggle for existence is increasingly hard to sustain. In any
case, it would be a rather risky assumption on which to base a vision of the
future. It is better to play safe with the deeply pessimistic view of the later
Freud, that the suffering we endure at the hands of our fellow humans is as
‘fatefully inevitable’ as that meted out by the forces of nature and the frailty
of our own bodies. Value consensus, too, seems a deeply improbable and
probably undesirable prospect – though it is equally difficult to see how any
functioning and convivial society could do without consensus on some very
basic norms.
Perhaps, then, the vision of a future society in which we could live happily
without need for rights is a utopia of the unfeasible kind. In any case, the
real world we now confront is one in which economic, political and military
power is arguably more unequally distributed than ever before. It is also one
in which, even in the most liberal societies, there are severe and persistent
threats to such civil rights as centuries of struggle have secured.
Nevertheless, the defence of our liberties need not be a merely negative act
of resistance – it can be, and increasingly is – enlivened by a more sober and
practical utopianism. To work for a more egalitarian distribution of wealth
and power, a more collabrorative and convivial institutionalism of our pub-
lic and private lives, the discovery of alternative sources of pleasure and
fulfilment and a more respectful engagement with the rest of nature might
take us in the direction of ways of living together in which the requirements
of rights and justice were more in accord with the prevailing culture and
moral sentiments of its citizens. Such a society would be one in which rights
might need to be enforced less, but might achieve their purposes more
successfully.

Note
This chapter presents a condensed and reworked version of the argument given in
more detail in Chapter 4 of Benton (1993).
2 Return of the proletariat?
Pension rights and pension
finance in the ageing society
Robin Blackburn

Many approaches to understanding social stratification, whether they focus

on class or status, ethnicity or gender, assume a continuous present. They
seek to identify who gains and who loses, who is included and who
excluded, by core social practices at a given moment in time. Age cohorts
can be isolated and identified in this way too. Their relative size, situation,
cultural resources and historical experience lay the basis for generational
identities and projects. Thomas Jefferson observed that each generation was
a new country. As individuals bid for self-expression, recognition, responsi-
bility and rewards they will appeal to, or help to constitute, a generational
character and project. On the other hand, each generation is bound to its
predecessors and successors by the life course, and locked into a cycle of
inter-generational dependence applying to the young and the old alike.
Generations are trapped in a one-way flow of time, posing a challenge
to the market’s rules of simultaneous exchange. However, the life course
still offers scope for a cycle of delayed reciprocity, whereby the debt to
parents is repaid when they are supported in old age. In pre-industrial soci-
eties kinship systems furnished a mechanism for meeting the needs of
dependent young and old, while charity dealt with those without kin or in
poverty. National ‘cradle to grave’ welfare regimes sought to end poverty
and to use risk-pooling both within and between generations, to promote
modern aspirations to equality, liberty and solidarity.
Pensions, by their very nature, are devices for conferring rights to future
streams of income. It is interesting that capitalism is also such a device. The
rights of the capitalist stem from ownership of means of production, con-
ferred by inheritance, saving (‘abstinence’), arbitrage, and entrepreneurial-
ism, comprising both the extraction and the realisation of surplus. However,
capital itself is the discounted present value of the future stream of earnings
to be anticipated from an asset. There is thus a continual flattening of per-
spectives as the future value of an asset is, as the financial jargon has it,
‘marked to market’.
The pensioner’s rights have traditionally been built up through public or
private service, or financial contributions. Usually they take many years, or
even decades, to acquire. The power to confer a pension exercised by a
38 Political economy and rights
sovereign or government, or by a private institution or wealthy individual, is
a reflection and confirmation of their power and their recognition of service.
Pensions can thus best be understood by a kind of longitudinal political
economy that roots them in today’s social arrangements, while understand-
ing that the final shape of the rights that have been granted – whether it be by
the sovereign to the subject, the government to the citizen, the employer to
the worker, the master to the servant, the financial supplier to the customer
or the husband to the wife – will only be known when the last payment is
made due under the pension agreement.
In an essay that anticipated some later debates on the ‘ageing society’
Bryan Turner saw pensioners and the elderly as stigmatised by their lack of
function and their economic reliance on today’s worker (Turner, 1989).
Turner was later to argue that rights can be seen as a device for meeting
human frailty, and pensions seem to qualify under this rubric (Turner,
1993). But the construction of rights to pensions has been about much more
than the duty of care to the frail elderly. It is about the opportunity to enjoy
life after retirement, to have more free time and to be able to command a
modicum of respect from friends and relations. Those who are frail have a
claim on the public that is sometimes achieved at the cost of a dependent,
supplicant status. The right to a pension in retirement has been seen
precisely as a far preferable alternative to being in receipt of poor relief.
In the UK and USA there was widespread pensioner poverty in the 1960s,
a poverty that could prompt guilt, pity or contempt, or a mixture of these.
The improvement in the relative position of many pensioners in recent dec-
ades changed attitudes towards the growing number of more affluent and
assertive retirees. With more children than pensioners in poverty the plight
of the elderly receded and they could even be represented as an excessively
privileged group, notwithstanding the persistence of poverty among elderly
women.
Turner believed that the stigmatisation of the aged stemmed from the fact
that they were simply recipients within the welfare schema. However, Sarah
Irwin challenged this view by pointing to opinion poll evidence that the aged
were seen as deserving recipients of public funds, in contrast to the
unemployed and ‘welfare scroungers’ (Irwin, 1996). She argued that inter-
generational dependence could generate solidarity rather than conflict.
However, the corrosive effect of market-based perceptions can indeed erode
a sense of reciprocal obligation between young and old. Modernity itself
requires the young to throw off the tutelage of the old. It nourishes a cult of
youth that associates ageing with negative traits (Gullette, 2004). Yet there
remains an awareness that personal and social identity develops in and
through essentially transgenerational relationships. Human beings are dis-
tinguished from other animals not only by neotony – lengthy childhood –
but also by the greater relative importance to them of culture, hence the past
and the future, their predecessors and successors.
 Return of the proletariat? 39
Historical patterns
The first pensions were conferred as privileges rather than rights, the recipi-
ents being soldiers or public servants who had rendered conspicuous service.
The English Poor Law allowed that aged paupers should be given some
relief, but local gentry and municipalities had great discretion in awarding it.
Each parish was responsible only for its own and relief could be refused, or
administered only in the most humiliating way, to those deemed to be bad
characters. Nevertheless, by the eighteenth century most parishes did pay
modest old age pensions to those deemed past work, and it was not until the
1830s that residence in a poor house became a common condition of receiv-
ing this stipend. From the late seventeenth century the wealthy could pur-
chase annuities for their spouses or favoured retainers. Advances in the
calculation of life tables and risk enabled suppliers of life insurance like the
Equitable Life Society, founded in 1762, to offer annuity products that
enabled their clients to pool risk (Jones, 2004).
It is possible to distinguish between a ‘Puritan’ and a ‘baroque’ approach
to pension provision. The Puritan approach was individualistic and stressed
the rewards of thrift, prudence and hard work. Not a few of today’s large
pension providers, whether in London, Edinburgh, Boston or New York,
stress their roots in Protestant self-help. The baroque tradition reflected the
claim of good monarchs to relieve the problems of deserving subjects. The
Elizabethan Poor Law had elements of both approaches. In France there
were several proposals in the last years of the Ancien Régime to develop a
universal system of old age pensions. Condorcet argued that risk-pooling on
a national scale would enable the scourge of old age poverty to be banished.
In April 1794 the Revolutionary National Convention enacted a decree to
this effect, also setting up old people’s homes in every department, with a
special day set aside every year to honour aged citizens and to invite them
to impart to the young a hatred for tyranny (Blackburn, 2002). But the
overthrow of the Jacobin republic doomed this attempt and it was left to
Bismarck, the German Chancellor, to introduce the first national old age
pension in 1889. He believed that the legitimacy of the monarchy, chal-
lenged in different ways by the Social Democrats and the Catholic Church,
would be strengthened by the monarch’s ability to raise the aged out of
poverty, and prevent them from becoming a burden on their relatives. In
Britain social reformers and trade unionists pressed for a similar pro-
gramme, leading, in 1908, to Lloyd George’s Old Age Pension Act. These
pension systems embodied a weak notion of pension rights – weak because
the pensions were not that generous and were conditional on means testing
to prove poverty.
Increases in longevity, industrialisation and urbanisation, and the rising
numbers of the population without a claim on small property, helped to
encourage the idea that the public authorities should furnish an element of
social insurance to risks like old age and disability. There were campaigns
40 Political economy and rights
for old age pensions, and governments saw pension provision as a way of
boosting their legitimacy and weakening opponents. The pension systems
not only alleviated poverty but also tended to confirm patriarchy and the
social hierarchy – there was an echo of the baroque here, which could be
seen in differential contribution/pay-out conditions and in special regimes
for the military and key civil servants. Esping-Andersen (1990) sees a legacy
from absolutist monarchy in such arrangements.
The pressure for universal provision developed slowly and in the mean-
time many of the aged worked till they dropped, or congratulated them-
selves on the fact that they had a paternalist employer, or a profession, or
just enough property (a farm or small business) to keep them going in old
age and to ensure the help of their heirs. In the United States it was not until
the Social Security Act of 1935 that a national retirement pension scheme
was introduced and not until 1950 that it became truly universal in scope.
Puritan resistance to a public pension was greatly weakened when the
Great Crash of the 1930s wiped out the savings of millions of hard-working
Americans. Nevertheless, President Roosevelt insisted that, in order to safe-
guard the programme from future attacks, it should be financed by specific
contributions rather than from general taxation. Thus it was the contribu-
tion record that established the right to the pension, not the mere fact of
being a citizen or resident of the United States. By 1950 nearly all US citizens
would be covered, since all employees had a payroll tax deducted from their
wages – their spouses and dependants were covered too. Indeed, the Social
Security card and number itself became the most often used badge of civic
identity.
The construction of the first public universal pension systems and the
wider process of the ‘invention of retirement’ created a new status but were
themselves products of a type of class struggle. Trade unions and social
democrats accused employers and governments of either working older
employees to death or throwing them on the scrap heap. While willing to
accept company schemes, they still usually insisted that governments alone
had the scope to establish universal measures of social insurance. The polit-
ical leaders who sponsored the first public old age pensions – Bismarck,
Lloyd George, Franklin Roosevelt – were bidding for support at times of
great social questioning and unrest. They saw themselves as heading off
class conflict and showing how a more enlightened policy could boost the
authority of the established order. President Truman was responding to a
showdown between unions and employers when he approved the vital
Social Security amendments in 1950.
Many of those who pressed for the introduction of old age pensions saw
them as a way of rescuing the aged from poverty – but also of extending free
time. In the UK in 1931 over a half of workers over 65 were in work; by 1961
this had dropped to a quarter and by 1981 to only one in ten. In his influen-
tial analysis of welfare regimes, Gosta Esping-Andersen (1990) describes
pensions as a powerful instrument for the incremental ‘decommodification’
 Return of the proletariat? 41
of life and labour in a capitalist society. Precisely because public pensions
have been a mechanism of decommodification they have also become the
target of ‘reforms’ that might revise or cancel the gains and concessions they
embody. The same is true of pension rights conceded by public or private
employers who can try to revoke agreements made decades ago. As argued
above, it is only across considerable stretches of time that it becomes clear
who has gained from a protracted tug-of-war. It is also necessary to grasp
the operational logic of rather complex rules and structures in a context of
scarce fiscal resources. Pension provision requires such huge resources –
great chunks of GDP – that its ability to promote ‘social integration’ can
place great strain on ‘system integration’ if appropriate fiscal means are not
found (Lockwood, 1996: 535).

The logic of public provision

Universal public pension systems in the industrialised countries stem from
the period immediately following the Second World War, with its heightened
social expectations, and the immediately following period of the post-war
boom and Cold War. The tremendous boost that war gave to the taxing
capacity of the state played a key role in showing that it was possible to pay
for something as expensive as a universal retirement system.
As the new pension systems were established or extended, the contribution
requirement was only loosely applied. Older male workers were usually
credited with contributions that they had not made, or that they had
made to a system that had been destroyed by hyper-inflation and economic
collapse. This ‘blanketing in’ was possible because these systems all make
great use of the pay-as-you-go financing system. Over time benefits were
increased, contributions were raised and the contribution record came to
determine the precise entitlement. Wives derived rights to a pension accord-
ing to their own or their husband’s contribution record, conditions that left
many older women with a weaker entitlement. The ‘pay-as-you-go’ system
of pension finance enabled fairly good pensions to be paid out quite quickly
and was generally adopted. The stream of income to the system was used to
pay current pensions, with any surplus going to a trust fund, which was
invested not in the stock market but in low-interest public bonds.
The pay-as-you-go system can only be used by a public authority, since
only the government can count on revenue from future generations to dis-
charge the entitlements of today’s workers – whose contributions pay cur-
rent pensioners. This system, as Paul Samuelson (1958) pointed out in a
classic article, only balances its books by counting on a draft from the
unborn. Commercial organisations cannot do this and are obliged to pre-
fund, namely to use contributions to set up a fund that will eventually be
able to pay a pension. The language of pension rights applies in somewhat
different ways to public pension schemes and personal pension plans, and,
since both are linked to contributions in some way, neither is an unqualified
42 Political economy and rights
‘right’. It is true that public pensions go to everyone who has had a job or
been married. But women’s coverage is weaker, if they didn’t marry, or their
husband failed to make contributions, or their formal employment was
limited or broken. Above all, women’s unpaid labour in the home was given
no direct recognition by these contribution systems, but was weakly
reflected in spousal rights. Likewise, members of immigrant communities
often do not have the prescribed length of contribution record – say 39 years
for a full pension. There are currently proposals in several European coun-
tries to introduce ‘citizens’ pensions’ paid regardless of contribution, but
these require naturalisation, or are graded according to length of residence.
From the mid-1970s welfare regimes came under strong pressure to cut
the value of pension benefits and to extend commercial coverage and subsid-
ies. The parties of the left failed to consolidate and extend welfare gains, or
to come up with effective answers to the ‘stagflation’ that brought an end to
the post-war boom in the 1970s. Trade unions were greatly weakened by
these developments and by a large expansion of the available labour force,
as the baby-boom generation came of age, as women entered the workforce
in larger numbers and as jobs were outsourced to newly industrialising
lands.
Nevertheless, public pension regimes in most countries other than the UK
proved quite resilient. The public French, German and Italian pension sys-
tems have delivered, and to some extent still deliver, a more generous pen-
sion than do those of the USA or the UK. The US Social Security system
delivers a better pension than the UK’s basic state pension (BSP) and has so
far withstood successive attempts to weaken it under Presidents Reagan,
Clinton and George W. Bush. These pension systems – the US one included –
are based on the principle that all those who contribute receive a benefit, as
of right. In Britain too everyone who has the appropriate contribution
record receives the BSP, but a means test limits the right to the more generous
Pension Credit.

Private pensions and ‘implicit privatisation’

In countries with a strong stock market – Britain, the USA, Switzerland and
the Netherlands – the leading finance houses continued to offer pension
products, such as annuities, to the better off. They successfully argued for
valuable tax breaks for private saving. The result was what Jasper Hacker
(2002) has called the ‘divided welfare state’, in which both public and pri-
vate contribution entitlements create ‘path dependence’, or a vested interest
in the scheme’s continuance.
The ‘defined contribution’ pension scheme or product has the logic of a
commercial transaction. Those who contribute to a personal plan have the
right to be fairly and honestly treated but no specific pension promise is
being made. In this type of plan or scheme – they include the 401(k) plans in
the USA and the ‘Stakeholder’ plans in the UK – market risk is borne entirely
 Return of the proletariat? 43
by the contributor. If the market slides then the pension will follow it.
Governments in a growing list of countries now give tax relief to such
schemes and employers have increasingly switched to offering them over the
past two decades.
On the other hand, there are still many so-called ‘defined benefit’ occu-
pational pension schemes – though many are now closed to new members –
which appear to offer something quite close to the specific entitlement of a
public pension. In the case of schemes for public sector workers the parallel
is even closer, since it is the state that stands to guarantee the promise. When
a private company sponsors a defined benefit scheme it is pledging its own
resources to fulfilling the promise – though, as we will see, this is a promise
that companies may vow never to repeat, and may try to wriggle out of.
Contrary to what is sometimes claimed, governments find it difficult, at
least in the short run, openly to renege on pension promises. However, they
can sometimes get away with apparently small changes to the rules – for
example, indexing future pensions to prices, not earnings – and over a long
period this can greatly diminish the value of the promise. This is what
Margaret Thatcher did in 1980 and in consequence the basic UK state pen-
sion slipped from being 20 per cent of average earnings in 1980 to being 15
per cent of average earnings in 2003. But few pension ‘reformers’ have been
as effective as Margaret Thatcher. Such varied political figures as Ronald
Reagan, Alain Juppé, the French centre-right premier, Silvio Berlusconi in
Italy in the 1990s and Helmut Kohl in Germany were all forced to back
down because of broad hostility to their attempts to make deep cuts in
public pension entitlements. Moreover, even in Britain, from about 2000
onwards, the government has been under increasing pressure from the large
number of older voters to raise the pension in line with earnings and to come
up with sundry pension supplements.
The pressure to reduce public provision has not abated and the first dec-
ade of the twenty-first century witnessed new attempts to cut back public
provision in the USA, Europe and Japan. It was argued that the public
systems were far too generous, embodying promises that – with population
ageing – would ruin the national accounts if not drastically curtailed. It was
also claimed that they inhibit private saving (the evidence does not bear this
out) or that payroll taxes raise the cost of labour and hence increase
unemployment (there is a prima facie case here). The logic of this type of
reform represents either explicit or – more often – ‘implicit’ privatisation
(Pierson, 1997). The latter downgrades public coverage with the effect of
obliging those affected to resort to commercial fund managers if they wish to
avoid poverty. Finance houses in search of more custom and employers
anxious to shed pension commitments help to constitute a powerful lobby
group in favour of pension reform no matter how reluctant voters are to
endorse the approach.
Governments find the attempt to cancel pension entitlements a delicate
and explosive undertaking. The past decade has seen huge public battles
44 Political economy and rights
over these issues in the core states of the European Union. However,
governments can simply close public sector schemes to new entrants and in
that way curtail the growth of new entitlements.
Corporate managers offered ‘defined benefit’ pensions as a method of
labour retention, and as a seemingly cheap concession, at a time when
employment was tight. The future cost of these schemes did not, until quite
recently, even figure in the annual accounts. But with maturation of the
schemes, liabilities mount. The trustees of the scheme are meant to build up
a fund that will pay a pension based on final salary and the number of years
spent in the scheme. When stock markets were buoyant British and US
companies were allowed to take quite protracted ‘contribution holidays’,
only to be forced to make extra contributions when the stock market shrank
and inflation subsided. If there is a shortfall in the pension fund it is the
sponsoring corporation that is obliged to make it up. In 2004, US companies
had pension deficits of over $300 billion and UK corporations had pension
deficits of £85 billion. The payments required to mend these deficits reduce
the resources available for investment. Sometimes workers would be sacked
en masse in order to save the pension fund. In other cases elaborate
restructuring – involving receivership, spin-offs, mergers or takeovers –
enabled the pension fund to be deprived of the sponsor’s assets. Public
outcries against defaulting companies led to the setting up of insurance
agencies, the Pension Benefits Guaranty Corporation (PBGC) in the USA
and the Pension Protection Fund (PPF) in the UK. If the sponsor goes bust
then supposedly the quango-like insurance body will guarantee some scaled-
down benefit. However, companies that are in difficulties often skip their
contributions and can inveigle their employees to sacrifice their pension
rights in order to keep their jobs. The PBGC, which had a deficit of
$23 billion in 2004, has often condoned the devaluation of entitlements as
well as the non-payment of contributions by sponsoring corporations. The
British PPF has very modest resources and, in the event of a large company
going bust, could not rescue its pension scheme (Blackburn, 2004b).
The public systems have generally survived for more than half a century,
while famous finance houses (Equitable Life) and famous corporations
(Enron) have collapsed, or simply languish like so many once-powerful con-
cerns – a half of the blue chips of the US or UK stock markets in the 1970s
are now gone or mere shadows of their former selves. Public systems are not
as exposed to market squalls and consumer fads. They gain because we
know a government will be there in fifty years’ time. Not only can they count
on future taxes, they are also cheap to administer, the contributions being
automatically deducted as a part of the payroll in most cases. By contrast,
commercial suppliers have to market their wares and customise their collec-
tion and delivery. Because pension plans are a long-term commitment it
makes sense for suppliers to invest huge resources in signing up customers
who will pay over a stream of contributions for decades to come. The result-
ing intense competition is very expensive; salaries in the financial sector are
 Return of the proletariat? 45
also high. Another factor leading to exorbitant fees is the fact that pension
plans are complex and providers are much better informed concerning their
workings than their customers. It is common for fees and charges to amount
to between 1.5 and 2.0 per cent of the fund each year; at this rate the pension
‘pot’ suffers a reduction in yield of 30–40 per cent over thirty or forty years
(Blackburn, 2002; Pensions Commission, 2004).
From the standpoint of the individual customer the impact of high charges
is somewhat softened by tax relief. In the UK tax relief on pension contribu-
tions costs the Treasury about £13 billion a year, the equivalent ‘tax spend’
in the USA being $100 billion. The lion’s share of this tax relief goes to
wealthier savers, with the richest tenth receiving over a half of all tax relief in
the UK. In the USA and the UK about a half of all adults lack any significant
private pension entitlement (Hughes and Sinfield, 2004).
Tax-favoured private and occupational pension funding has led to
the growing importance of pension funds on the stock exchanges and in the
boardrooms. This has led to a species of ‘grey capitalism’ in which the
influence of pension money is wielded not by policy-holders but by corporate-
nominated trustees and by the fund managers of the leading bankers and
brokers. This regime is marked by an accountability deficit, by over-mighty
chief executive officers and by scandal (Useem, 1995; Blackburn, 2002;
Prins, 2004). Just occasionally the managers of public sector worker funds,
such as the California Public Employee Retirement System (CalPERS), the
largest pension fund in the world, do consult with their members and throw
their weight behind better corporate governance or socially responsible
investment (SRI).

The ‘generational contract’ versus ‘generational accounting’?

Philosophically the publicly sponsored pay-as-you-go systems have been
claimed to embody a contract between the generations. Each generation
makes a contribution and each receives a benefit. Where there is economic
growth pensions can grow with national prosperity as long as there is a
broad balance between age cohorts. A problem arises when generational
cohorts are of very unequal size, because of increased longevity and/or ‘baby
booms’, followed by declining fertility. Rapid growth of productivity can
absorb the strain, but if growth slows generational imbalance will make for
awkward choices. There are options: (a) members of the smaller cohort have
to pay much more than did members of its larger predecessor in order to
cover the latter’s pensions; (b) the pension received by the members of the
larger cohort is scaled back so that contribution rates don’t have to rise; (c)
contribution rates are raised, and pensions are cut, until a fit is found based
on shared sacrifice; or (d) resources are found elsewhere in the system so that
the shared burden is somewhat reduced.
These are not easy choices to make, yet they are unavoidable. There are
many in the USA and Europe today whose past contributions entitle them
46 Political economy and rights
to pensions they may not receive. As noted above, there has been great
opposition to those politicians who try to downsize public pensions and
encourage people to make their own arrangements instead. But though
wholesale reform is often rejected, entitlements are nevertheless often grad-
ually and sneakily whittled down, with the real reductions not coming into
force for a few decades. Some opponents of pension privatisation claim
that there is really no problem. But in most parts of the developed and
developing world the demographic shock of ageing is large enough to be a
major problem unless new sources of revenue are brought into play.
The Puritan/baroque contrast now yields to a conflict between ‘gener-
ational solidarity’ and so-called ‘generational accounting’. The generational
solidarity approach, in its most radical form, insists that the qualitative
bond between parents and children makes any precise calculation of who
gains and who loses unseemly and inappropriate. Supporters of loading all
pension needs on to the pay-as-you-go systems incline to this approach and
regard talk of a crisis of the ‘ageing society’ as needless alarmism. A very
different assumption is made by the partisans of the generational accounting
approach, which emerged among economists in the USA in the 1980s and
1990s (Kotlikoff and Burns, 2004). Just as the Puritan approach stressed
individual self-reliance, so advocates of generational accounting argue that
each generation should pay its own way, relying on no help from parents or
children. Risk-pooling within a generation is OK, but not between gener-
ations. The supporters of generational accounting argue that if modern
states only came clean with their implicit pension debt – that is, the present
value of their future pension liabilities, minus the present value of future
payroll taxes – they would find that they are all staring bankruptcy in the
face. They regard the attempt to impose this burden on today’s children and
those not even born as the height of injustice; to do so will halve the incomes
of rising generations and cause untold social strife.
The methodology of generational accounting is very questionable. The
choice of discount rates with which to establish a ‘present value’ for liabil-
ities and future revenue is difficult and arbitrary. There may be deficits but
we don’t really know how big they are going to be because we don’t know
what future wage growth, interest rates or inflation will be and differences of
a single percentage point, or less, can make a huge difference to the final
number. In isolating every generation, enthusiasts of generational account-
ing and privatisers (an overlapping but not identical category), like to argue
that today’s workers, paying their payroll tax (social security contribution),
are making a bad investment since they are not likely to get a good rate of
return. But if they considered their payroll tax as a way of paying the
pensions of their parents and those Peter Laslett calls their ‘predecessors at
large’, then there would be no reason to expect a rate of return (Laslett,
1996; Baker and Weisbrot, 2000).
The reasoning of the partisans of generational solidarity is to be preferred
to that of the supporters of generational accounting, but is flawed none the
 Return of the proletariat? 47
less. Each generation has a right and duty to revise the social arrangements it
finds in place. While they have obligations to their parents’ generation, these
are not limitless. Talk of a literal generational compact would be wrong,
since the newborn find many choices already made on their behalf. The
debate on John Rawls’s philosophy of justice provoked Brian Barry to bring
out the inter-generational dimension this should acquire. He writes: ‘the key
here is a willingness to claim and be claimed upon in virtue of a given
principle. Justice must be fair from both sides. . . . The point here is that we
should think not of a choice made by a particular generation at a single point
in time but of a collaboration over many generations in a common scheme of
justice’ (Barry, 1989).
I think that such conclusions invite us to come up with formulas for the
equal sharing of the burdens of an ageing society – and, given the probability
that these might be considerable, to find appropriate fiscal innovations to
meet them. The fair sharing of burdens requires that overall pension provi-
sion should be adjusted so that the ratio of pensioner incomes to average
incomes is held broadly constant (Myles, 2002). At the present time in
Europe and North America the overall income of the average pensioner is a
little over 70 per cent of average income. These averages do not, of course,
tell us about inequality between pensioners, or in society at large. But they
do indicate a generational ratio, with the retired having lesser outgoings
than those with the responsibility of growing families. To maintain some-
thing like this overall ratio, while improving intra-generational distribution,
could be seen as a scheme of inter-generational justice. To do so would
require a raising of future contribution rates but also, perhaps, a greater
effort to pre-fund tomorrow’s pensions by raising savings rates and obliging
employers to contribute more effectively – the employers’ contribution has
plummeted with the switch from ‘defined benefit’ to ‘defined contribution’
schemes.
The past three decades have seen a sharp rise in inequality in most of the
leading capitalist states, especially in the UK and USA. It is quite possible
to address the issue of generational equity and also tackle the issue of a
more equal distribution within pensioner incomes and average incomes.
Traditionally all public pension schemes have involved an element of
redistribution from rich to poor, even if many still allowed those who had
contributed more to receive a somewhat higher entitlement. Commercial
pre-funded schemes obviously make no attempt at such redistribution,
though they do incorporate some risk-pooling. When some proponents of
‘generational solidarity’ claim that all pre-funding is inimical to redistribu-
tion they are wrong. For example, restoration of the employers’ contribu-
tion could help to build a pension reserve pledged to supplying secondary
pensions to all. The famous baby-boomers also still have some time to build
up a reserve so that all the costs of their future pensions will not have to be
met from payroll taxes alone. Should the baby-boomers bear some of
the consequences for having fewer children? It would be unfair to see the
48 Political economy and rights
plunging birth rate in the 1970s as simply a preference for consumption over
child-rearing, since it also reflected the squeeze on earners and women’s
greater participation in the labour force. However, the baby-boomers have
great political clout and they would be wise to anticipate the costs of ageing.

The costs of the ageing society

Ageing will mean that a quarter of the population will be over 65 in all the
large European Union states within 25 years and some way should be found
of ensuring that their retirement income gives them an appropriate share of
gross domestic product (GDP) – if their incomes are to be 70 per cent of
average income then this would amount to something in the range of 13–16
per cent of GDP. The onset of ageing is likely to be somewhat slower in the
USA than in Europe because the US birth rate is higher, immigration is
higher and life expectancy among the black and Hispanic minorities is still
considerably below that of the white population. Nevertheless, the number
of those aged 65 or over is set to rise from 36 million in 2003 to 70 million in
2032, or from 12 to 20 per cent of the total population. The trustees of the
social security system warn that it will be unable to pay promised pensions
by 2042 and that it faces a cumulative deficit of $3.5 trillion by the latter
part of the century. The Medicare programme, which supplies medical care
to the elderly, faces a projected deficit that is about three times as large.
The ageing of the population is a feature of both developed and develop-
ing countries. The UN mid-range projection tells us that the over-60s, who
comprised 30.7 persons per 100 adults of working age in 1998 in the
developed countries, will comprise 62.3 persons per 100 adults of working
age in those countries in 2050. The great success story of the past quarter-
century has been the dynamic growth of the Chinese economy, but this has
been based in part on a reduction in the birth rate, which will lead to a rapid
ageing of the population in coming decades. In Asia, including China and
India, the anticipated proportion of those over 60 rises from 14.1 per 100
adults in 1998 to 40.8 by 2050 (UN Population Division, 2000).
The proportion of the British population that is over 65 is set to rise from
15 per cent today to 24 per cent by 2031. The UK Pensions Commission has
warned that there will be a pension shortfall of 4–5 per cent of GDP by
2050. Britain has a very mean state pension, so, at current levels of entitle-
ment, it will absorb little future national income – only about 4.4 per cent
of GDP by 2050. Private provision looks unlikely to supply more than about
4 per cent of GDP, and a raising of the effective age at which workers retire
could add, at most, two percentage points. The Pensions Commission has
estimated that to maintain pensioners’ current relative income in 2050
would require 13.9 per cent of GDP, assuming that women work as long as
men, an ambitious goal (Pensions Commission, 2004). If one is optimistic
about raising the number of 60–70-year-olds in work then they might earn
as much as 2 per cent of GDP to add to their other entitlements. But there is
 Return of the proletariat? 49
still a gap of over 4 per cent of GDP – a very large sum – between what they
are likely to receive and what they need if their relative position is not to
decline sharply. The consequent pensioner poverty will also be exacerbated
by the fact that pension entitlements and savings will be very unequally
distributed among those of pensionable age. Many – the majority – will
suffer a drastic drop in living standards unless something is done (about
which more below).
Of course, the foregoing projections make assumptions about continued
ageing of the population that reflect current trends. Europe’s well-
established ageing trend is rooted in low fertility as much as increased life
expectancy. In both old and new member states women are having fewer
than two children each. In Italy, Poland, Germany and Spain average life-
time fertility in 2000 was only 1.2 to 1.3 children per woman. In Scan-
dinavia and France, where governments have made an effort to frame
child-friendly policies, it was a little above 1.7 (UN Population Studies,
2002; Therborn, 2005). While some of this decline represents women’s
desire to escape from the burden of multiple child-rearing, most women
would still like to have at least two children. If good child care was widely
available and cheap, and if there was generous maternity and paternity
leave, it could encourage women to have more children. Even with child-
friendly policies, it will remain the case that having children is expensive and
that many women will wish to delay childbirth, both considerations tending
to smaller families.
It is a delusion to suppose that there are ‘free lunch’ solutions to the
problems of the ageing society. Compulsory retirement should end and
employers’ prejudices against older employees should be challenged. But the
extra time at work in later life is likely simply to offset later entry to the
workforce and increasing numbers of career breaks, occasioned by retrain-
ing and parenthood, while education and training to ensure a productive
‘third age’ will require new social investments (Laslett, 1996).
Existing population projections already assume the maintenance of immi-
gration at current rates. Further increasing the numbers of immigrants is
desirable in itself, helping to foster a more multicultural society and enshrin-
ing a right to freedom of movement that we all cherish. But it will not have
much impact on the ageing trend, since immigrant populations swiftly adopt
the demographic profile of the host populations, with greater longevity and
lower fertility, meaning ever larger numbers are required. So to maintain
Europe’s 1995 age profile in 2050 would mean a rise in population to more
than a billion (UN Population Division, 2001). Furthermore, the source
countries will not wish to lose all their expensively educated and trained
workforce, especially as most of these countries have ageing populations
themselves, as we have seen. At the very least, much greater provision should
be made for the remittance of immigrant earnings to their countries of
origin, which have borne the costs of their upbringing and education.
50 Political economy and rights
Policy implications
Europe will have to pay for proper old age and health protection – and must
do this at the same time as paying for child-friendly policies and more
expenditure on education and research. The Anglo-American path of indi-
vidualisation and commercialisation generates heavy costs of its own and
leads to 2–3 per cent of GDP being absorbed by intense marketing and the
exorbitant salaries of the financial sector. There is a need to find other ways
to finance needed social programmes. Following earlier setbacks to the
‘reform’ project, which saw defeats for Juppé, Berlusconi and Kohl, more
limited measures were enacted by Dini in Italy, Raffarin in Italy and
Schroeder in Germany. These measures slashed entitlements that were
located decades in the future while preserving those of workers over 40. So
these cutbacks will hit those who retire in 2025 and after. Often those who
will lose out continue to pay heavily into a social insurance system that will
give them pensions that will replace less than a half of their previous salary
instead of the 70 per cent or more that current retirees in much of Europe
still receive (Math, 2004). Because they leave large entitlements in place for a
decade or two further instalments of reform are still being negotiated.
We have seen that in the UK likely pension provision from all sources in
2050 will still fall short by 4 per cent of GDP of what would be needed
simply to maintain pensioner incomes at about 70 per cent of average
incomes. The cumulative impact of pension reform over several decades
will be to open up a similar gap in European provision, with the state
pension still a little more generous than in the UK but with private coverage
in most countries (apart from the Netherlands) being more modest. Early
indications from the new member states of the EU who have adopted
commercial fund management suggests that there will be disappointments
here too. In Hungary and Poland heavy charges prevented any accumula-
tion in the first three years of the new pension funds (Feltz, 2004). It is also
difficult to ensure universal coverage for private-funded pensions where
there are wide disparities in wage and salary levels. Compulsory contribu-
tions are usually not appropriate for those in debt because they will be
paying much greater interest on the debt than they earn on their savings. In
the UK overall indebtedness is now running at 130 per cent of disposable
income.
Pension rights are rooted in the arrangements to be found in specific terri-
tories, whether nation states or federations like the European Union. Not-
withstanding globalisation, states still furnish the essential framework for
trade, capital flows, taxation and welfare (Wood, 2003). Corporations that
need access to specific resources and markets – especially important ones
such as the USA, the EU, Japan or China – can be obliged to pay for this, or
to conform to rules established by the relevant authority. But governments
have let large corporations off lightly, as they contribute less and less,
whether in taxes or contributions, to employee welfare.
 Return of the proletariat? 51
The best way to restore faith in the future and to mend pension deficits is
to find ways of obliging all corporations to contribute but in a manner that
does not tie the employee to the fluctuating fortunes of their own particular
employer or subtract from the resources they need for investment. Dis-
proportions between age cohorts, whether caused by baby booms or rising
longevity, do pose a problem, as we have seen. Existing pay-as-you-go pen-
sion regimes certainly still have a vital role to play in pension provision,
because they are highly cost-effective and because they have considerable
public understanding and acceptance. But placing the whole burden on
payroll taxes is unwise and potentially undermines other aspects of a well-
functioning economic order.
For the past two decades the core states of the EU have unsuccessfully
grappled with abnormally high unemployment. The deliberately deflation-
ary policies adopted at Maastricht in 1992 and by the European Central
Bank are certainly to blame for this. But pay-as-you-go systems have also
weakened demand and raised labour costs. Payroll taxes are generally not
‘progressive’. They fall heavily on workers earning only average or low
salaries. Laying a ‘tax wedge’ of 40 per cent on average incomes, they con-
sequently weaken demand and discourage high rates of employment. With
officially recognised unemployment running at 10 per cent, and many of the
unemployed not even getting on the register, certain categories of the popu-
lation – above all the under-25s and the over-50s – have been condemned to
poverty and idleness. Not surprisingly, the demagogues of the far right have
often flourished in these conditions.
If we compare the USA and UK with mainland Europe we find that the
different socio-economic regimes generate different types of unemployment.
The company-specific formula of corporate welfare provision that flour-
ishes in the Anglo-Saxon countries has destroyed good jobs in manufactur-
ing and exposed employees to ‘sponsor risk’ (if their employer goes
bankrupt they suffer benefit loss too). Europe’s high ‘payroll taxes’ have
been consistent with manufacturing strength and the protection of good
jobs. But overall they weaken demand and deter the creation of formal jobs
in the service sector, helping to explain why employment rates among those
aged 18–65 are ten to fifteen percentage points lower than in the USA or UK
(Directorate General of the EU, 2002). In practice unemployment has been
concentrated among younger workers and older workers, but eventually
almost everyone falls into these categories and they find their contribution
record impaired. Europe faces a severe ageing shock and is not prepared for
it. The problem is no longer that the pension burden will be too heavy and
has instead become that there is likely to be a return to widespread old age
poverty in a decade or two as pay-as-you-go systems buckle under the
strain. What is needed is the establishment of social funds that could help to
meet pension needs.
52 Political economy and rights
The share levy: a new way to finance future pensions?
It is now some time since governments dared to ask the owners of the large
corporations to contribute more to the wider society, without which their
own profits would be impossible. The most far-seeing attempt to think
through the types of new finance that would be needed to guarantee gener-
ous social provision was the advocacy of ‘wage-earner funds’ in the 1970s
and 1980s by Rudolf Meidner, chief economist of the main Swedish trade
union federation (LO) and co-architect – with Gosta Rehn – of the Swedish
welfare system.
Of all the EU states the one that has most persistently sought to ensure
good benefits with low unemployment is Sweden. A distinguishing feature of
the Rehn/Meidner model was that it embraced pre-funding for supplemen-
tary pensions on top of the basic state pension. Sweden enacted a funded
supplementary state pension in 1959. It also incorporated a wage-
bargaining round that helped to protect high employment levels. Corporate
taxation also strove to be ‘counter-cyclical’; that is, to moderate the impact
of economic fluctuations and the trade cycle. Whereas Anglo-Saxon com-
panies are encouraged to take ‘contribution holidays’ during upswings of
the trade cycle, Swedish corporations were, and are, encouraged to stow
operating profits in special tax-exempt reserves.
Anticipating the new social expenditures that would be entailed by an
ageing and learning society, Meidner came to believe in the need to set up
strategic social funds – ‘wage-earner funds’ – to be financed by a share levy.
This did not work like traditional corporate taxation, which subtracts from
cash flow and, potentially, investment. Instead Meidner’s levy falls on
wealthy shareholders, the value of whose holdings is diluted, not on the
resources of the corporation as a productive concern. According to the ori-
ginal plan every company with more than 50 employees was obliged to issue
new shares every year equivalent to 20 per cent of its profits. The newly
issued shares – which could not be sold for several years – were to be given to
a network of ‘wage earner funds’, representing trade unions and local
authorities. The latter would hold the shares, and reinvest the income they
yielded from dividends, in order to finance future social expenditure. As the
wage earner funds grew they would be able to play an increasing part in
directing policy in the corporations they owned (Meidner, 1978; Pontusson,
1994).
Meidner’s visionary scheme was very attractive to many trade unionists
and members of the Social Democratic Party but strongly opposed by the
privately owned media, and by the ‘20 families’ who dominated the coun-
try’s large corporations. The family cartels quickly grasped that the levy
would threaten their control. Attacks on the scheme claimed that it would
aggrandise the trade unions leaders who would dominate the ‘wage-earner
funds’. It was also alleged that the scheme unfairly favoured employees in
the private sector, since they were to be the first to receive shares from the
 Return of the proletariat? 53
levy. After a scare campaign the Social Democratic government eventually
diluted the proposed share levy but set up social funds financed by a more
modest profits-related tax. These came to own 7 per cent of the Swedish
stock market but, to prevent them getting any larger, were wound up by the
incoming Conservatives in 1992. The already accumulated assets were used
to finance a string of scientific research institutes. So Meidner’s plan has
yet to be properly tried, though even in its dilute form it helped to propel
Sweden to the forefront of the knowledge-based economy.
David Lockwood has pointed out that the fiscal regimes that prevail in
modern capitalist states are often highly complex and that they create win-
ners and losers in opaque ways that appear to cut across the lines of class
conflict, as classically conceived. The majority of voters are cautious about
proposals for higher taxes, even if these are supposedly progressive in char-
acter, fearing that they will in the end catch many on middling incomes and
that the rich will know how to evade them. While there is at least a keen
awareness of tax issues, there is much less understanding of how tax relief
works. In the UK in 2002–3 net tax relief on pension savings cost the public
purse £13 billion, or more than 1 per cent of GDP. While more than half the
workforce gain something from this relief, 51 per cent of the total sum
accrued to the top 10 per cent of earners and 67 per cent to the top 20 per
cent (Hughes, 2004). Although the majority of adults now own some shares,
especially via pension funds, there is still a very great concentration of share-
holding wealth among the richest tenth and richest 1 per cent. Any proposal
to tax shares, or dilute their value, would lead the wealthy to pose as the
champions of a broad coalition. I have drawn attention to pension deficits,
yet here too Lockwood’s caveat would apply: ‘Fiscal deficits are neither
socially transparent nor class specific’ (Lockwood, 1996: 545).
Yet the prospect of pension deficits has inspired huge social movements
and has toppled governments in Europe over the past decade. These move-
ments brought together members of several generations, with groups of
workers often playing a key role. In the USA, the American Association of
Retired Persons (AARP) has joined in defending the social security old age
pension – but those aged between 30 and 55 have been just as hostile to
privatisation. The ‘grey vote’ is a growing factor – 42 per cent of those who
voted in the British general election of 2005 were aged 55 or over – but
‘grey’ parties have not appeared. Implicitly or explicitly these movements in
defence of pension rights appeal to an ideal of the nation and its citizens as a
sort of extended family that demands decent treatment of all those whose
past effort and sacrifice have built and defended the national ‘home’ (to use a
Swedish locution). These movements are thus civic, national and in a sense
‘proletarian’. The proletarians in Ancient Rome were those who produced
sons and daughters – it was their labours, in their widest sense, that repro-
duced the Republic. Certainly pensions will not survive the time when there
are no longer any children and, as Samuelson forecast, the members of the
last generation will die a lonely and comfortless death (Samuelson, 1958).
54 Political economy and rights
The movements to defend pension rights have had a purely defensive
character. This has been a strength and a weakness. But generational
solidarity is likely to be unsustainable – or to be worn down by disappoint-
ment – unless it finds a way to tax the greatest concentrations of wealth in
present-day capitalist society, as Meidner proposed. It is noteworthy that
citizens of today’s capitalist democracies pay tax on the houses they live
in but large-scale owners of shares pay nothing for the power this gives
them. If existing taxes are required to cover all the escalating costs of the
ageing society then this will compete with other claims on the public purse
(education, health, child care) and it will raise tax rates in a way that is
counterproductive, actually lowering the eventual yield.
I have elsewhere shown that in both the USA and the UK a Meidner-style
share levy calculated at 10 per cent of profits would, over 26 years, raise a
total fund worth $10 trillion in the USA and £1 trillion in the UK, and that
in both cases such a fund could augment resources needed for pension
provision by 2 per cent of GDP (Blackburn, 2004a, b).
With the coming retirement of the baby-boomers, the cost of pension and
health care will grow steeply. Politicians fear the electoral consequences if
they raise taxes just as much as they fear the backlash if they cut pension
entitlements. Some might see the advantage of a share levy. But many will
hesitate because it would target a supremely influential group – the capitalist
class – and might presage the advent of a new type of collective ownership. A
share levy remains a rather good match for looming pension deficits but as a
forecaster one would have to be cautious and say that it will not be tried
until all else has failed.
3 Developing an economic
sociology of care and rights
Miriam Glucksmann

Care is high on the public and political agenda, not only in Western welfare
states, but increasingly on a global scale with recognition of the care ‘deficit’,
work/life balance and international chains of care (e.g. Ehrenreich and
Hochschild, 2003) as shared international issues. Fundamental normative
and practical questions are raised about the principles and provision of
care, with implications for rights as well as for claims, including potential
expansion of both the terrain of rights and the groups on whose behalf they
are claimed.
Perhaps the simplest way to understand this emergent crisis is as a con-
sequence of the disruption of earlier modes of looking after those unable to
care for themselves. Multiple changes have impacted on ways of caring that
were previously taken for granted or integrated with other activities, so
disembedding them from their cultural, social and economic underpinnings.
The shift in welfare states from a male breadwinner to a dual earner model,
heightened emphasis on individual worth and dignity, the effects of urban-
isation and economic development for traditional kin-based structures and
responsibilities, life course alterations arising from increased longevity and
time spent in education and retirement, are just some of the changes. At the
same time as provoking new problems of care, this disordering also provides
a stimulus to new ways of thinking about how care is conducted, acknow-
ledging historical and cross-cultural variety, and the different groundings for
rights implicit in differing modes of provision.
Such concerns are at the heart of this chapter, which explores the different
kinds, bases and understandings of rights associated with different social
organisations of care. The approach is informed by a number of core
premises. First, groups conceived as dependent and in need of care are con-
structed socio-historically. There is nothing universal or fixed about care
needs. On the contrary, they are emergent, changing, specific to time and
place and immensely variable. Second, needs may be met by care provision-
ing systems that also differ considerably across cultures, nations and history,
both in how they are organised and in the extent to which they are differen-
tiated from other social relations. Third, varied systems of provisioning have
their own correlative sets of ‘rights’. Again these may take many forms:
56 Political economy and rights
informal or formal, prescribed by tradition and convention or by laws
enforced through criminal justice systems. They may be understood as a
‘private’ matter between individuals and families or publicly recognised and
articulated. This framework for care rights conceives of systems of care as
overall processes that include provision as well as entitlement. An economic
sociology perspective will be evident in the focus on exchange, reciprocity
and obligation, the work and cost of care and the conditions shaping
its demand, delivery and consumption. However, since socio-economic
relations may be understood only in relation to the culture and history
with which they are bound, elaboration of the argument draws on a wide
disciplinary range of evidence and analysis.
A brief review of approaches to care, drawing out some its social particu-
larities, precedes a discussion of issues raised in applying a rights perspective
to this field, notably those of provision and correlative duties. The central
parts of the chapter elaborate the argument that differing modes of care in
different times and circumstances give rise to contrasting kinds of rights, a
proposition that is then explored in greater detail and cross-culturally with
respect to elder care.

Concepts and landscape of care

Care is both a slippery and a complex concept (Thomas, 1993; Leira and
Saraceno, 2002), associated with a variety of meanings, activities and
practices, as exemplified in the extensive literature resulting from feminist
scholarship, welfare state research and public and social policy. Even the
word has different connotations in different languages: the English ‘care’
combines the emotional feeling of ‘caring about’ with the activity of ‘caring
for’ in the sense of ‘looking after’ or ‘taking responsibility for’, but this is not
the case even for some other European languages (Ostner, 1999; Ewijk et al.,
2002).
Pioneering feminist work in the 1970s and 1980s drew attention to care as
a form of female domestic labour, based on unquestioned naturalisation of
caring as a feminine attribute and activity, undertaken often as a ‘labour of
love’ within the family (Finch and Groves, 1983; Graham, 1991) or on a
very low paid basis. Political demands were made for both its recognition
and remuneration. The focus later shifted towards care receivers and the
potential for patronising and oppressive care. Disability rights groups high-
lighted the power of professional carers, and relations of dependency that
could divest recipients of dignity and control. While some have stressed
the emotional character of care, others foreground it as a ‘work’ activity
(Waerness, 1984; Ungerson, 1990; Thomas, 1993; Harrington Meyer,
2000). In recent work, scholars challenge any strong distinction between
cared and cared for (Williams, 2001; Fink, 2004), since, through reciprocity
and interdependence, we all experience the giving and receiving of care at
one time or another. This recognition of the vulnerability of the human
 Developing an economic sociology of care and rights 57
condition is complemented by a universalist paradigm proposed by some
feminist moral and political philosophers to undermine the gendered conno-
tations of care and replace it with care as a normative orientation. Rather
than treating care as inherently female, thus reinforcing its devaluation and
exclusion from public life and political concern, the alternative ‘ethic of
care’ would establish a ‘general habit of mind’ (Tronto, 1994: 127) charac-
terised by attentiveness to the needs of others, responsibility, competence
and responsiveness. Pursuing this ethical turn, Sevenhuijsen (1998) critiques
the individualism and self-sufficiency she sees in rights discourse and argues
for notions of care to be brought centrally into citizenship, justice and
morality.
Welfare state research echoes all these developments. Daly and Lewis
(1999, 2000), for example, develop a three-dimensional conception of social
care as labour involving costs, inhabiting a normative framework of
responsibilities and obligations, which straddles public and private bound-
aries. Gender-inflected revisions of Esping-Andersen’s (1990) regime typ-
ology (notably Lewis, 1992, 1999; Orloff, 1993, 1996; O’Connor, 1993;
O’Connor et al., 1999; Sainsbury, 1999; Boje and Leira, 2000; Daly, 2002)
throw much light on the configurations of paid and unpaid care, and the
respective responsibilities of family versus state and market in different wel-
fare regimes and in varied conditions of welfare state restructuring. Focusing
on the nation state or European Union level, they introduce the issue of
citizenship to the debate and raise the question of rights to receive, and
indeed give,1 care as integral elements of a putative inclusive citizenship (e.g.
Knijn and Kremer, 1997).
The approach to care/rights developed here is rooted in this broad litera-
ture. In particular, I would emphasise the significance of gender as a struc-
turing principle in the organisation of care. Although challenged by the
rights issue, gender has been so deeply implicated in care relations that it
would be tedious to draw attention to it repeatedly. Even when unstated,
gender is none the less central to the discussion. A second key point is that
care, however it is arranged, involves labour and work.2 This remains the
case whether or not the work is recognised as such, paid, physical or emo-
tional. Although care becomes more obviously visible as work when under-
taken as paid employment outside informal and familial settings, the activity
of caring always presupposes an allocation of labour, and hence economic
resources, even if this is obscured by taken-for-granted gender divisions of
labour.
Another social particularity of care, less evident from the literature but
important for the discussion below, is that it is not usually differentiated out
as a self-standing field but overlaps and intersects with the state, family,
education and health systems, but in different ways in different countries.
What is understood as distinctively ‘care’ activity varies considerably
because of this even in European welfare states. For example, in Nordic
countries where child care is increasingly defined as pedadogy, aimed at
58 Political economy and rights
educational and personal development of the child, it is subsumed in the
education system, with a requirement for professionally skilled staff. In the
UK and Netherlands, however, the prime purpose of child care has been to
enable mothers to enter waged work or to combine employment with family
responsibilities. In this scenario there is less emphasis on child development
and the training of nursery staff, and rather more on ‘flexible’ working time
in the guise of ‘family friendly’ or work/life balance policies initiated by
ministries of employment. Elder care, by contrast, differs in the extent to
which it is separated from care of the sick or disabled. Where the overlap is
especially strong, as in Sweden, it tends to be medicalised, and occupational
statistics so aggregated that it becomes difficult to distinguish numerically
between nurses and carers for the dependent elderly, while in the UK (with
the exception of Scotland) a strict distinction remains between the social and
health care needs of the elderly. In Italy, however, where migrant maids are
often employed to undertake household tasks, including care of family
members, it becomes problematic to distinguish elder care from domestic
labour (Lyon, 2005). Appreciating such comparative variation has direct
relevance for a discussion of rights. Moreover, the fact that care provision
occurs within national systems that organise it in different ways inevitably
shapes how claims and entitlements are articulated, to whom and on what
scale. The potential for trans- or supranational rights would also assume a
distinctive and problematic character.

Established or human rights: theory or practice

At first sight asserting that the frail, vulnerable or sick, dependent infants
and children have the ‘right’ to care might seem uncontentious, an impera-
tive ethically incumbent on any society with pretensions to be enlightened,
civilised or humane, let alone those claiming to be democratic, progressive
or inclusive. Strong moral and philosophical arguments may be mobilised in
defence of the proposition that care be recognised as a human right. Indeed,
a convincing case has been made (Turner, 1993) for ‘the frailty theory’ (ibid.:
508) in which the sociological analysis of human rights is grounded (ibid.:
489) in the very concepts of ‘human frailty, especially the vulnerability of the
body’ and ‘in a theory of moral sympathy’ (ibid.). Existing human rights
conventions do already contain broad principles. Article 3 of the Universal
Charter of Human Rights states ‘Everyone has the right to life, liberty and
security of the person’, echoed in Article 5(i) of the European Convention on
Human Rights. Article 5 of the UN Declaration and Article 3 of the ECHR
declare ‘No one shall be subjected to torture or to inhuman or degrading
treatment’. The ‘degrading treatment’ clause would be especially relevant in
claiming rights for the elderly and disabled, while the catch-all ‘right to life
and security of the person’ could be deployed in claiming rights to care for
all in need of it.
However, while the claim for universal human rights to care may be
 Developing an economic sociology of care and rights 59
theoretically or philosophically unproblematic, claiming such rights in
practice is a completely different matter and far from straightforward.
Claims for rights are predicated on the prior recognition of need. But in
order for care to be articulated as a need in the first place presupposes that it
has been differentiated from other dimensions of interpersonal relations and
established as a specific concern and distinct practice. In reality this may
often not be the case. Suppose, however, that it is. Then, for the right to care
to be effective, rather than a wish or intention, it has to be provided. Other-
wise the right has very little meaning. The right to receive care thus implies a
correlative duty or obligation on the part of others to provide it. Someone or
some institutional body must assume the responsibility of delivery. And as
care provision rests on resources being allocated to it, the costs of labour,
money and time have to be met. In any claim for rights the question of who
assumes responsibility for, financially resources and undertakes the actual
work of care has to be addressed. In this way, a right to care also implies a
political economy of care, a point implicit in this chapter, if not fully
elaborated.
The distinction between formal and substantive rights, or putative and
established rights, is paramount in the case of care. There cannot be the right
without the duty. Care, in common with education, welfare and other social
rights, differs in kind from political and civil rights that safeguard the
freedom to vote, free speech and freedom from religious persecution and
discrimination. Guaranteeing a right to care requires active intervention.
Moreover, as with other ‘second generation’ rights (Bobbio, 1995), estab-
lishing a right to care involves moving beyond the abstract individual, since
protection is sought for people of different statuses whose rights are based
on age, health and varying kinds of dependency or vulnerability.
That claims for care are historically emergent and culturally specific com-
plicates the question of universal rights. Even though it could be conceivable
nowadays to claim care as a universal right, the articulation of actual claims
varies immensely, as I shall argue, between countries and cultural and social
traditions, over time and space, and according to the basis of the need
(infancy, frailty, mental impairment and so on). However, attention to cul-
tural and historical difference is not an argument in favour of relativism.
Understanding that care provision and its attendant rights are cross-
culturally variable and often limited underscores that they are a historical
achievement. A view of rights as emergent is entirely consistent with the
proposition that care of those in need is incumbent on all societies with
sufficient resources. Further, a concept of rights as emergent signals the
possibility of their continuing expansion or ratcheting up. That physical
disciplining of children is now denounced as abuse of children’s rights is one
example. Similarly, rights to comfort and longevity for the elderly are
implied in the UK winter fuel allowance, which is premised on the notion
that it is intolerable for people to die of hypothermia. Debates about health
care rationing are more explicitly about rights to medical care. As wealth
60 Political economy and rights
increases we may anticipate a ratcheting up and expanding political
economy of rights, rather than minimum floors and safety nets.
If care giving and receiving are interdependent and formed in relation to
each other, any rights approach involves recognising their fundamentally
relational character. As the right to receive is predicated on a duty to pro-
vide, the care relation rests on there being a ‘couplet’ of receivers and givers.
Care may be understood as interdependent in a second way, as highlighted
by recent commentators (e.g. Williams, 2001). At differing points in the life
course people may be either recipients or givers of care. All are cared for in
infancy, some in old age, and many care for others during long periods
of their lives. Given that dependency takes many forms and varies over time,
it would be misleading to conceive either of mutually exclusive groups of
givers and receivers, or of society as comprised of a class of always-
dependents and always-carers. Turner’s arguments about both frailty and
sympathy are given added force by the relational and interdependent nature
of care.
Many sociological perspectives qualify as candidates for thinking about
rights to care. Building on the writings of Lockwood (1996) and Morris
(2002), a Marshallian-derived conception of social rights of citizenship
could be developed in terms of civic stratification. In citizen-based rights to
care, citizenship would evidently be central. However, conditions of resi-
dence, nationality, migrant, marital and family status, level of income and
wealth could all be used by national governments to rule in or out eligibility
to entitlement to care, thereby creating access stratified according to citizen-
ship criteria. A more hermeneutic approach to actors’ understandings of
rights, on the other hand, would help to unpack discourses of care rights and
interpret frames and regimes of justification, throwing light on subjectivity
in the care relation. If common-sense expectations about rights and entitle-
ments are historically sedimented in particular national cultures and their
respective welfare regimes, then a comparative interpretive framework
would have much to offer. Alternatively, a Foucauldian inflected analysis
could examine rights against a view of care as power/knowledge based
around the emergence of expert systems. The very construal of groups ‘in
need of care’ resonates with Foucault’s (1967) analysis of the ‘ship of fools’.
The more that care recipients are conceived as dependants and professional
carers as possessing knowledge as to their best interests, the more relevant a
power/knowledge perspective with its focus on technologies of care and
professional occupations. Finally, debates about social capital, individual-
isation, risk and ‘bowling alone’ (Giddens, 1998; Putnam, 2000; Beck,
2002) also provide potentially fruitful approaches to care rights, especially
when placed against recent empirical evidence about the reshaping of per-
sonal communities and patterns of friendship (Pahl, 2000; Pahl and Spencer,
2004; Williams, 2004). All these raise important questions about historic-
ally changing communal and personal obligations and practices relating to
care needs.
 Developing an economic sociology of care and rights 61
The approach outlined below is not intended as an exclusive approach.
It could be deployed in combination with these or other sociological
perspectives.

Modalities of care provision: relationality and exchange

The framework that I want to develop for exploring rights rests on prior
acknowledgement of diversity – historical, cross-cultural and national – in
systems of care or processes of entitlement and provision. Of the wide var-
iety of systems, some are formalised and legal, while others are so rooted in
traditional social relations that they are hardly recognised. Such diversity
has obvious implications for rights to care since these will inevitably be
shaped according to the provisioning system that is their context.
In many societies care activities are undertaken without being appreciated
as such or formulated in terms of entitlement. But, even in contemporary
Western democracies or welfare states, where rights to care are more likely
to be explicitly articulated, care is also provided in large measure on the
basis of taken-for-granted, usually gendered, familial obligation, or religious
or charitable commitment. The historical construction of those deemed to
be dependent or in need of care is thus a basic precondition even of the call
for rights, let alone the establishment of citizen- or employee-based entitle-
ments. Four broad groupings of dependants are the most widely ‘recognised’
today: children, the elderly, the sick and the physically or mentally disabled,
each with its own history of emergence, construction and specificity in dif-
ferent societies. Anthropological evidence suggests that in many subsistence
societies there are no disabled, and few in ill-health, as babies with deform-
ities are left to die, and serious illness or impairment in adults leads rapidly
to death. In Europe it was only in the seventeenth and eighteenth centuries
that the child was created and childhood conceived as a status and life-phase
distinct from adulthood (Aries, 1979). Similarly, Foucault documented the
creation of insanity and its confinement.
Such considerations underscore the importance of a cross-cultural and
historical approach towards care and care/rights. Appreciating variability in
why, when, how and under what circumstances the ‘right to care’ is likely to
emerge as a demand, or not emerge, is fundamental to a sociological
approach. To conceive of rights as attaching only to citizens and states
would impose an arbitrary and quite unnecessary restriction of the field.
Consequently, I adopt a broad comparative perspective towards care/rights
in general and with respect to the elderly. The prime reason for so doing is to
avoid erecting an artificial boundary around the analysis that would exclude
non-legally based claims and duties from the terrain of ‘rights’. At the same
time, such a perspective implicitly endorses the critique (e.g. Nussbaum,
2000; and elaborated in other contributions to this volume) that human
rights discourse reflects Western philosophical conceptions of the abstract
individual. On the other hand, understanding that rights are linked to the
62 Political economy and rights
circumstances in which they emerge does not imply a relativistic position
that would judge them all as equally good or bad.
In order to attract ‘rights’ in the first place, then, care has to be differenti-
ated from other social relations, thereby creating the potential need. Add-
itionally, as suggested earlier, care inherently involves at least two parties,
receivers and givers, connected by relations of interdependency in a process
of care. A third general feature of systems of care provision and rights is that
many are characterised by relations of exchange, resulting in distinct econ-
omies of care. Exchanges may be equal or unequal, and direct or indirect.
They may occur simultaneously or be deferred, be serial or intergenera-
tional, and may be structured in various ways by gender and age and other
implicit or explicit criteria. Diverse modes of care provision are likely,
moreover, to be associated with different kinds and qualities of relationship
between care givers and receivers, giving rise to particular understandings
on the part of recipients as to their ‘rights’.
Premised on a conception of care as a differentiated and relational activity
involving differing kinds of exchange and expectation, it becomes possible
to distinguish schematically between distinct modes or systems of care pro-
vision. In pre-industrial, traditional or kin-based societies, reciprocal rights,
obligations and duties between different generations within a family are to
the fore, while rights in welfare states revolve around ‘entitlement’ (whether
universal, means tested or selective). Quite other considerations arise when
care services are directly purchased from care providers (individuals or the
market) by or on behalf of individuals in need of care. Each of these modes
entails a distinctive set of exchange relations between receivers and givers
and institutional providers: mediated by taxation and social insurance in
welfare systems; social reciprocity of labour when kin undertake caring; and
monetary exchange in the case of the market or private purchase. To these a
fourth care-system could be added, based on unpaid labour, voluntary
finance, or charitable activity. Here relationships more closely resemble
those of a ‘gift economy’ outlined by Cheal (1988) and implied in Titmuss’s
(1970) study of blood donorship than those of exchange.
In the real world, of course, different systems of provision operate at the
same time. The increasing tendency of European welfare states to rely on the
voluntary sector to provide social care, while simultaneously encouraging
delivery by the market, produces an ever more hybrid and variegated ‘mixed
economy’ of care, where private and public, market and state, paid and
unpaid, formal and informal become inextricably intertwined. Different
countries are characterised by differing combinations of these basic modes
of delivery provided formally by the state, market and voluntary organisa-
tions, and informally by the family, neighbours or volunteers. The resultant
national patterns of provision will shape not only the demands that are
made of the state but also the rights that are established, given that
the construction of a division of social responsibility for care will also be
constitutive of different kinds of rights.
 Developing an economic sociology of care and rights 63
National configurations of care/rights systems link loosely with gendered
typologies of the welfare state (Lewis, 1992; Esping-Andersen, 1999;
Sainsbury, 1999), and with patterns of women’s paid employment. Thus the
USA, where reliance on the market for individual purchase of care services is
strong, displays high levels of women’s full-time employment and a smaller
welfare state than Western Europe. However, there is no simple one-to-one
association. Women’s employment is also high in the Nordic countries but
here the ‘social’ state is far more comprehensive, with publicly funded care
services. In Britain, Germany and the Netherlands, with their varying levels
of women’s paid employment and pronounced pattern of part-time work-
ing, state and market modes of care provision are more closely integrated,
though in differing ways, and informal and voluntary activity also make
a major contribution. In Italy, the (market) employment of migrant
workers as carers represents an important component of ‘private’, ‘informal’
household and family provision.
Struggles over the proportionate contribution of the state vis-à-vis other
care providers are high on the political agenda of these and many other
economically developed countries in the world. The debate is frequently
couched in terms of ‘choice’, a discourse that individualises the issue as one
of enabling care recipients to choose between multiple providers. The dan-
ger of such rhetoric, according to its critics, is to draw attention away from
state responsibility for public provision, which would need to be already
available in the first case in order for individuals to make an effective choice
between alternatives.
That differing systems of provision operate alongside each other, in
combination, complementing each other or filling the gaps, does not imply
that they are well integrated. They may result in multiple and perhaps con-
flicting expectations and obligations on the part of givers and receivers. The
onus usually falls to those seeking care to create their own ‘package’ (Knijn
et al., 2003), for instance, when a working mother goes part-time and relies
on her own parents as well as pre-school facilities to meet child care needs.
At this practical individual level, people juggle between what is available to
produce their own jigsaw of services. At a societal or systemic level too,
combining the various systems of care provision is far from a simple matter
of addition, especially in ideological terms. The problem is exacerbated by
the diverse logics underlying principles of provision, which may rest on
differing priorities that oppose rather than reinforce each other. In the
Netherlands, for example, the dominant forms of care provision (bureau-
cratic, professional, familial and market) are associated with distinct logics
and vocabularies (Knijn, 2000: 234–7), promoting incompatible concep-
tions of care recipients and providers, construals of the basis of care and
system of control.
64 Political economy and rights
Contrasting systems of rights
What implications for rights may be drawn from the variety of systems of
care provision? It seems almost self-evident that different systems, with their
diverse underlying logics, will be associated not simply with different kinds
of effective rights, but also with different conceptions and understandings
of rights on the part of both care receivers and givers. Some possible con-
trasts are schematically sketched out below as ideal types in the abstract,
rather than rooted in time or place. In practice, of course, there are no pure
systems, only instituted ones, which combine in different ways.
Where there is state or public provision, rights to receive care are likely to
be citizen-based. In this case citizens or qualifying residents are entitled to
receive care on the basis of legally instituted criteria. These might specify
conditions for receiving care (such as only to those who have no other
sources of care or who have contributed to a national insurance scheme, or
they might be means tested) but they are intended to apply according to a set
of impartial rules. Citizens have a legal right to receive provision, in terms of
cash or services, as long as they fulfil the qualifying criteria. Agencies of the
state with duties to deliver care become legally liable for instances of abuse
or failures in their ‘duty to care’. Several ‘scandals’ of this kind have been
well publicised in Britain in recent years, for example, when sexual abuse in
residential homes came to light decades after the event or when failure to
spot cruelty to an ‘at risk’ child in the care of social services culminated in
her death. Public enquiries and legal proceedings often follow the discovery
of such ‘derelictions of duty’ in the attempt to attribute blame and rectify
loopholes in provisions and practices.
Rights to care by family and relatives have a quite different character. They
are informal, rather than legally instituted, and dependent on goodwill, duty
or traditions of reciprocity. Innate gender characteristics are often assumed,
placing the responsibility for care squarely on female relatives. There are few
sanctions against particular people not providing care, although strong
social and moral conventions may operate. Parents expect and are expected
to care for their children, as indicated by social disapproval, potential legal
charges and media exposures that accompany cases of ‘home alone’ children
left behind by parents who go away on holiday. Societies assume general
responsibilities in relation to the next generation. But the question of
whether children universally enjoy the ‘right’ to be cared for by their par-
ent(s) is not as clear-cut. Similarly, do the sick, disabled, elderly and others
unable to care for themselves have the right to be cared for by relatives?
Cultures of honour and shame play a dominant role in many countries in
enforcing family care, as do gossip and other mechanisms of social control
and local convention. Nevertheless, ‘familial’ rights with respect to care
cannot easily be legally enforced, despite legal liability in instances of abuse
or neglect, especially where children are concerned.3 But this is a different
matter from a legal requirement that familial care be undertaken.
 Developing an economic sociology of care and rights 65
In many countries care services, particularly for pre-school children and
the elderly, are increasingly provided on a commercial basis by private com-
panies. Different kinds of rights are associated with the market and with
state and family. A simplistic view would be that the duty of firms is to make
a return on investment for their owners and that rights are restricted to those
of financial exchange. However, in reality markets have their own socially
instituted rules and norms that govern the behaviour of firms and business
practice, including trading rights (Boyer, 1997; Fligstein, 2001; Nelson,
2002). The rights to care that are purchased are more akin to consumer than
to citizen rights, in the sense that care agencies are legally responsible in
terms of trades descriptions or consumer protection. If providers undertake
to supply care of particular kinds or quality, then consumers are entitled to
sue if these are not fulfilled. Where publicly funded care is contracted out to
the private sector, standards are often state imposed, with market providers
subject to regulation and inspection. How high the standards and how rig-
orous the inspection regime are of course key issues for public policy and
effective enforcement. Moreover, consumers in this area are vulnerable to
manifold abuses arising from contracts that are by the nature of the case
‘incomplete’, given the impossibility of ex ante specification of care require-
ments. Depending on particular national regulatory regimes, private care
agencies will be more or less open to public scrutiny and the requirement to
reach minimum criteria. Individual purchasers would have resort to public
regulations in claims against businesses that fail to provide or to meet pre-
scribed standards. Care ‘consumers’ may also have a right to ‘value for
money’ (a concept that now permeates quasi-market/state provision), and in
the best-case scenario to quality established through market standards,
reputation, even branding and norms of corporate social responsibility.
In the final ideal-type, voluntary care, issues of rights and obligations are
more amorphous, especially at the individual level. By definition no one is
obliged to volunteer care. Voluntary care organisations, however, were
established precisely for the purpose, and often contract with the state or
private persons to provide it. But this formal obligation does not require any
particular individual to give their services for free. It is therefore important
to distinguish clearly between individuals and organisations providing vol-
untary care, and their complex relationship. The latter are increasingly run
on bureaucratic lines, employ paid staff and are subject to government regu-
lations relating to financial arrangements and governance as well as service
provision. In terms of rights, there can be no question of receivers having
formal entitlements to care from volunteers. People may wish for the ser-
vices of volunteers or voluntary organisations but have no right to expect
them. The actions of voluntary care givers, on the other hand, may rest on
altruism or an ethic of generalised reciprocity, in the hope that giving now
implies a right to receive later on. Where unpaid volunteer care activity is
widespread it could reflect a more widespread societal conception of rights
and obligations, as, for example, in the Netherlands. Here the high level
66 Political economy and rights
of volunteering, though religious in origin, is now secularised into an
almost national ethical imperative and form of citizenship (Burger and
Dekker, 2001).
In practice, actual systems of provision, and the rights pertaining to them,
are considerably more complex than these schematic ideal-types. As state
welfare policy in many European countries relies increasingly on delivery of
care services by the private and voluntary sectors, as part of public provision
as well as supplementing it, it becomes hard to disentangle state, market and
voluntary modes from each other. The resultant public–private–voluntary
hybrids impact not only on standards and regulations but also on rights. The
UK Labour Government, for example, has expanded financial support to the
voluntary sector, which assumes ever greater responsibility for supplying
front-line services, and it also stimulates massive growth of the private care
business by contracting out services. The introduction of voucher schemes
enabling those entitled to ‘public’ care to receive it from the private sector
effectively extends to designated categories of people the ‘right’ to receive
market care without paying for it themselves. But even if market, public and
voluntary modes of provision are structurally intertwined, a question mark
remains over what happens to principles of rights in such hybrid forms. Do
the logically distinct conceptions associated with each component mode
merge or in some way alter in accordance with the new realities?
Moreover, the relation between modes of care and the ‘rights’ attached to
them is always mediated by everyday understandings. People will have spe-
cific expectations of their ‘rights’ and duties depending on the particular
relation between care receiver and provider. National variations in common-
sense conceptions of rights are likely to accompany different modalities and
mixes of provision. While understandings of citizen-based rights may be
widely spread throughout the population to which they apply, familial obli-
gations and rights may be shared on a smaller scale, varying on ethnic,
income, regional or religious lines, and subject to historical change.
In terms of familial rights, there is little expectation in Britain nowadays
that an unmarried daughter will live at home to care for elderly parents,
although this was common until the mid-twentieth century. And in the case
of public provision, it would be fair to assert that most UK citizens feel they
are entitled to free health care. The National Health Service, publicly funded
through taxation, provides health care free at the point of delivery. ‘I’ve paid
in all my life, and so am entitled to receive treatment’ is a frequently
rehearsed refrain. Strong views prevail with respect to NHS entitlement,
extending beyond narrow exchange: not simply that those who contribute
are entitled to receive an equivalent value of care but that socialisation of the
fund for health care entitles all to provision, and that people should not be
excluded by the severity of their illness, cost of treatment, poverty or other
factors. Similar attitudes probably apply to disability: that the disabled
should be cared for and not penalised for their vulnerability. However, the
same UK population do not assume an equivalent or automatic right to
 Developing an economic sociology of care and rights 67
public elder care. In Sweden and other Nordic countries, by contrast, where
higher rates of taxation fund forms of elder care which are not publicly
provided in the UK, people express views about elder care rights similar to
those of UK citizens about health.
Through this schematic exploration of the rights putatively attaching to
differing modalities of care, I hope to have demonstrated the importance for
sociological analysis of care rights of encompassing not only socially insti-
tuted systems of provisioning and their respective logics of rights, but also
everyday understandings of entitlements and obligations.

The example of elder care

Elder care is used in this section to elaborate several themes of the approach
being proposed. Again the value of comparative perspective is stressed, and
a wide range of empirical examples is selected to bring out points of con-
trast.4 As will be clear, some of these hardly qualify as ‘processes’ or ‘rights’,
prompting the question of the appropriateness of a rights discourse.
Although ‘rights’ may be too formal a term, social conventions and cultural
norms nevertheless exist about whether care is provided, to and by whom,
resulting in definite expectations and duties. They may have no legal force,
but to view them merely as informal customs would underestimate their
quasi-compulsory significance in societies very different from our own.
Cross-cultural evidence indicates that particular kinds of right to elder care
are operative in many societies other than advanced industrial countries,
even if they are less differentiated, and differently instituted and understood.
The expectation of inheriting wealth, or living as an extended family, for
instance, will have implications for rights as well as for care. An examin-
ation of elder care reinforces the argument that exclusive focus on places and
times possessing formal systems of rights would be both ethnocentric and
anachronistic.
Two initial considerations merit emphasis. Like other care groups, the
‘elderly’ are socio-historically constructed rather than a universal or distinct
grouping found in all societies. For elder care to be an issue presupposes
in addition that ‘care’ and ‘needs’ are differentiated from other personal
relations, and disembedded from other social activities.
Anthropological evidence from North and South America amply demon-
strates both points, suggesting that in near subsistence or scarce conditions
those who cannot support themselves are often not supported by the rest of
society. Among the Athapaskan-speaking Arctic peoples, for instance, many
did not live to see old age (Vanstone, 1974: 82–3) while those who survived
suffered loss of prestige and power as soon as they could no longer bear
children or work. When the time came to migrate to new hunting grounds,
the normal practice for some indigenous peoples was to leave behind, effect-
ively to die, those unable to fend for themselves. For others, respect for
elders as bearers of traditional shamanic wisdom led to different treatment,
68 Political economy and rights
conceptions of death, the afterlife and spiritual cosmos interplaying with
material conditions in significant cross-cultural variation. Further south,
Aymaran speakers of the Andes have no term that directly translates as
‘care’, as distinct from rearing or looking out for. When people are old in
Pocobaya their descendants give them cooked food but in return they are
expected to herd animals, and in practice are often left alone for extended
periods with little food or the ability to cook it. No issue of care arises if
those who cannot feed themselves die. Being old and infirm seems pretty
miserable, with death coming quickly and few surviving to great age.
Among these different peoples living in harsh conditions, the elderly clearly
form a distinct grouping, whether involving inclusion or exclusion. But in
neither case does this lead to what could strictly be understood as ‘care’.
In many other societies, historically and across the globe, where norms of
care are associated with old age, familial obligations dominate. When kin or
family are basic institutions for protection and support, the duty of care for
elderly parents usually falls to their children. In Britain until well into the
twentieth century, this role fell traditionally to the youngest daughter, as
mentioned above. She was expected to stay ‘at home’ caring for parents
until their death rather than marry and form her own family. This practice
produced a population of ‘spinsters’, a social grouping that has now all
but disappeared, but that was a frequent object of derision and pity
(Glucksmann, 2000; Holden, 2001, 2004). Further afield, in the Indian sub-
continent, obligations extend to the larger kinship group rather than the
immediate family, and Hindu culture places the onus for elder support pri-
marily on the eldest son. Across Southeast Asia, traditions of filial piety
survive and children are strongly socialised into the duty of paying back to
parents what they have been given. Failing this obligation still entails shame.
In China and Taiwan, the oldest son is again charged with looking after
elderly parents. But the gendering of responsibility, shaped also by patriliny,
patrilocality and the marrying out of daughters, does not absolve women
from elder care. On the contrary, daughters-in-law traditionally undertake
the actual physical and emotional work of caring (Lin, 2003) while sons’
responsibilities revolve around financial support.
Despite rapid urbanisation and economic development, the elderly still
rely heavily on married sons and daughters (Lee et al., 1994; Lillard and
Willis, 1997), a dependence exacerbated by the lack of social provision
across the region. However, the continuing viability of these traditional care
relations is increasingly compromised by demographic transformation, mass
participation of women in paid employment and the demise of the daughter-
in-law role. Although strong demands are voiced in some countries for
public provision to meet the new care needs, solving the problem still falls
primarily to the family and to individual private solutions – such as Thai
daughters sending ‘home’ as remittances part of the wages from their work
in towns or abroad, or the widespread employment of migrant maids in
Taiwan and Hong Kong (Lin, 1999; Lan, 2003). In these new circumstances,
 Developing an economic sociology of care and rights 69
traditional expectations and rights with regard to care also undergo change
and can no longer be taken for granted. Physical care may be separated out
from financial support and purchased on a market basis, thus shifting provi-
sion across economic domains, while claims for social rights emerge for the
first time on a public terrain.
Unlike East Asia, protection and care of the elderly is broadly articulated
and accepted as a socio-political right and (to a lesser extent) responsibility
in Western welfare states. But here too it has become a hot topic, as welfare
state retrenchment coincides with an expansion of the elderly population
potentially in need of care.
The current ‘crisis’ of care, and consequently of ‘rights’ to care, has many
roots. Increased longevity and time spent in education, combined with low
birth rates, produce an ageing population and altered balance between
those who are working and dependent. Such is the extension of life expect-
ancy that the life course is now commonly treated as quadri- rather than
tripartite. The ‘Third Age’ of post-employment, previously the final stage of
retirement, decline and death, is seen now as a time of personal fulfilment
(Laslett, 1989: 4), while the fourth age of infirmity and dependency is
chronologically delayed to the late seventies or eighties. Concurrently,
notions of dignity and independence in old age raise expectations of quality
of life for the elderly. The extension of women’s paid employment and the
shift from a male breadwinner to a dual earner model, loosening of familial
responsibilities and increasing spatial mobility effectively disrupt traditional
systems of elder care, including established settlements between familial and
state provision. Rather than simply extending the demand for care, such
change also impacts on the shape and content of demand. Given the
strength of welfare state traditions in Western countries, claims for rights to
care in these new circumstances are expressed largely in political terms
through debate over public responsibility and the continuing obligations of
the state.
However, significant variations exist between welfare states in the pro-
portionate responsibility assumed by the state, family, market and voluntary
sector. And particular national divisions of social responsibility between
these modes have consequences for claims to rights, not only the kind and
extent of claims that are made and from whom, but also common-sense
understandings of those rights. For example, in Britain, Germany or the
Netherlands it is fairly common for women to undertake paid work on a
part-time basis in order to look after elderly parents. The residential care
home alternative is not only very costly, but also attracts a certain social
disdain or disapproval. But in Sweden, by contrast, there is a widely shared
notion that it is not right, or even shameful, for family members to under-
take elder care. A woman would be discouraged from giving up work to care
for parents, and warned of the loss of earnings and pension rights that could
in turn jeopardise her own old age. Here the elderly expect and prefer care to
be publicly provided rather than depending on families (Stark and Regner,
70 Political economy and rights
2002). Receiving services from unpaid volunteers is also considered demean-
ing, like charity or the workhouse.
In the Nordic, unlike other European or North American, welfare models,
a mutual contract between the state and individual citizen underlies social
provision, with public responsibility taking priority over intrafamilial duty
and voluntary activity. In return for long-term full-time employment, and
high levels of taxation and social insurance, extensive state funding of care,
including elder care, is provided, a form of exchange that is reflected in the
taken-for-granted expectations about social care.
A broad brush comparison of elder care provisioning in subsistence and
traditional societies, rapidly developing countries and established welfare
regimes highlights some central propositions of this chapter. Elder care
depends, in the first instance, on the emergence of a group in need of care,
and of specific kinds of need and care. For there to be an extended period of
retirement or even dependency that minimises misery and maximises fulfil-
ment is a massive historical achievement. Varying cultures, structures and
political economies of elder care give rise to different kinds of ‘rights’, many
of which are informal or conventional, enforced by normative and social
sanctions even though they are not legally enacted. Needs, modalities of care
and the ‘rights’ associated with them are best analysed together as an inte-
gral package. This does not imply harmoniously functioning or fixed
unchanging systems. On the contrary, demands, provisions and rights are to
be understood as changing dynamically in relation to each other. Especially
in times of socio-economic transformation, systems of provisions and rights
may be characterised by tension, contradiction and imbalance, becoming the
subject of both political and personal struggle to achieve more acceptable
solutions.

Conclusion
The analytical framework outlined in this chapter is rooted in an under-
standing of the practice and activity of care as a relational process between
receivers and givers, usually involving exchange. This supports a substantive
concern with historical, cultural and national variation between different
overall systems of care provision and the rights that attach to them.
Approached this way, the many different possible groundings and kinds of
rights come into sharp focus. Informal, taken-for-granted expectations and
personal or traditional obligations are equally to be considered under the
heading of rights as formalised entitlements or state-enforceable laws pre-
scribing citizen- or employment-based rights or putative human or universal
rights with their international sanctions. I have concentrated on the right to
receive care, but other additional rights, which there is not space to discuss,
would be directly implicated in this. The right to give care is the most obvi-
ous, but the rights of care workers (paid and unpaid) would also be signifi-
cant, especially with respect to employment and working conditions. In the
 Developing an economic sociology of care and rights 71
case of migrants, whose contribution to care work is so crucial in many parts
of the world, entry and residence rights come to the fore.
To develop the analytical perspective I distinguished schematically
between state, familial, market and voluntary modalities of care and the
rights associated with them, drawing attention also to the diverse everyday
understandings that may accompany them. Exploring the particular case of
elder care across a range of times and places reveals considerable variability
in provision, rights and expectations, confirming the argument that rights
are shaped according to the socio-economic, political and cultural circum-
stances in which they are found. However, relativity does not imply relativ-
ism. A concept of rights as emergent and expanding is entirely consonant
with the view that rights are particular to the context of which they are a
part. This too raises horizons beyond the scope of the chapter towards polit-
ical questions about the most effective ways of establishing a strong footing
for rights to care on the political agenda. This could be approached by
redefining citizenship to include care or through campaigns in support of an
ethic of care and degendered moral philosophy. An alternative or additional
strategy would be to direct greater scrutiny at the governance of systems of
care with the aim of entrenching norms of best practice and collective social
responsibility. This could arguably side-step the problem that rights can
only be demanded of others, the state or employers. The capabilities para-
digm of Nussbaum and Sen might provide another potential route to the
same objectives. But whatever means are deployed, rights are a historical
achievement rather than natural or automatic. They change and expand in
scope or terrain, but only as the result of concerted human action.

Notes
1 Although the right to give care is a dominant theme in current policy discussion,
this chapter focuses on the right to receive, given that this is the more basic
right and would need to be established before the right to give could become an
effective question.
2 My prime research interest in care is as work. The material for this chapter is
drawn from comparative research currently being undertaken collaboratively
with Dawn Lyon on modes of paid and unpaid care work and employment in
Europe. This is part of a larger research programme on ‘Transformations of work:
new frontiers, shifting boundaries, changing temporalities’ funded by the ESRC
(Award RES-051–27–0015), for whose support I am extremely grateful.
3 There are exceptions where familial responsibility is a legal requirement. For
example, in Germany until recently, adults in need of long-term care were obliged
to turn first to their children for some financial support even if they fell below the
social assistance threshold (Ostner, 1999: 112).
4 The material for this section is drawn from interviews with care experts in Europe
and other respondents from East Asian countries, in addition to published
sources. I am grateful to Andrew Canessa, Colin Samson and Rob and Ja Stones
for ethnographic information about conditions for the elderly in the Andes,
sub-Arctic and Thailand.
Part II

Status, norms
and institutions

The second part of this volume groups together three chapters that, in differ-
ent ways, illustrate the significance of normative ideals and status difference
for an understanding of entitlement and implementation with respect to
rights. An emphasis on status is most explicit in Chapter 4, which considers
the Marshallian heritage in the light of Weber’s (1948) writings on status,
and Lockwood’s (1996) subsequent work on civic integration and class
formation. Though Marshall was interested in the effect an equal status of
citizenship could have on ameliorating the inequalities of the market, he was
aware of the possible influence that class prejudice and inequalities of wealth
could have on the implementation of rights. He also saw that citizenship
rights themselves could function as a basis for inequality, and Lockwood
expands these insights through his concept of civic stratification; a system of
inequality generated by the rights that can be claimed from the state. This
inequality functions on two dimensions: the formal designations of inclusion
and exclusion with respect to rights, and the informal processes of gain and
deficit. He notes, but does not develop, the idea that particular groups
or particular areas of rights can undergo periods of expansion with respect
to entitlement, such that the map of rights is never fixed but subject to
contestation and change.
Chapter 4 explores the application of these ideas to the analysis of
welfare and work in the context of debate both on ‘the underclass’ and on
immigration and asylum. The chapter considers the dominant arguments of
the ‘underclass’ debate and the emergence of an increasingly contractual
welfare policy, setting out the status issues associated with these develop-
ments. These operate through both the differing conditions of benefit
imposed on different claimant groups and the degrees of stigma that may be
attached to dependence. Most vulnerable are the long-term unemployed
and single parents, and Morris notes the possibility that negative percep-
tions of these groups are fuelled by policy rhetoric emphasising respon-
sibilities over rights. The chapter then moves on to consider the varying
circumstances of migrants and asylum seekers with respect to work and
welfare rights, arguing that ‘universal personhood’ with respect to rights
has yet to be fully established. The emphasis is instead on the role that a
74 Status, norms and institutions
differentiated system of rights can play in the process of management and
control, though such systems do not go unchallenged. Instead, work
and welfare rights operate within a contested terrain of both expansions and
contractions, and rather than guaranteed certainties we find a negotiated
pragmatism.
Chapter 5 presents the claim that ‘women’s rights are human rights’ as a
claim to equal status, though the status dimension of the analysis goes fur-
ther and deeper than this assertion. The chapter begins with a juxtaposition
of Turner’s search for ontological foundations and Waters’s social con-
structionist position vis-à-vis rights, and finds a parallel in feminist debates,
through Nash’s normative commitment to equality and Walby’s focus on
structural changes in a gender regime as possible bases for rights claims. In
presenting her account of the platform and achievements of feminist organ-
isations in the struggle for rights, Elson draws on both positions. She high-
lights how a change in gender regimes from a domestic to a more public
form can mean enhanced public status for women, and how an engagement
with the language of human rights rather than women’s rights is a status
issue. The Human Rights Sub-Commission on the Status of Women had to
fight to make the claim to equal status a reality, even in terms of the alloca-
tion of recognition and resources within the UN. Similarly, the international
response to the Convention for the Elimination of Discrimination against
Women was to view it as in some sense secondary, and this is reflected in the
number of reservations registered by signatory states.
To make their claims tell, women had to establish themselves not just
as women but as ‘half of humanity’. The argument that systematic abuses
arising out of gender-specific issues are human rights abuses is both an
endictment of androcentrism in perceptions and definitions of human
rights, and a challenge to the underpinning status order. Similarly, ‘the per-
sonal is political’ is a claim for status recognition of relations in the personal
and private domain, which has traditionally played a poor second to the
public sphere. This questioning of the established status order does not stop
there, however, as the issue of recognition erupts again when feminist post-
colonial theorists shine the light of equality on ethnocentric conceptions of
women’s rights and human rights. The chapter moves on to consider the
danger of reifying and essentialising difference through recognition, and
considers the arguments for both revaluing and degendering ‘female’ qual-
ities; the former recognising and the latter challenging difference. Finally, in
acknowledging the constraints of legal discourse, Elson argues for an appeal
to moral legitimacy in attempts to transform practices, perceptions and
understanding.
Chapter 6 focuses on the implementation of established norms through
the example of anti-racist policy in the EU, which legitimises EU-level action
to combat discrimination. The chapter distinguishes two related processes:
the importation of new ideas and ideals, in which social movements
play a prominent role; and their translation into policy, which involves
 Status, norms and institutions 75
the mediation of differences and competition for resources. The former is
rooted in a cultural dynamic and the latter in an institutional dynamic – and
the move from one to the other is seen to be critical for the translation of
norms into rights. One problematic aspect of this ‘translation’ can be the
way that different actors seek to represent norms in terms of their own pre-
established interests and orientations, which can highlight the existence of
contrasting perspectives on the ultimate goal of anti-racism. Thus, status
and struggle can still be an issue, and as a relatively recent area for active
intervention, anti-racist norms have encountered certain difficulties in mov-
ing from broad principles to concrete interventions. Some of these difficul-
ties have been related to both recognition and resource issues, as competing
policy frames and embedded interests come together in a complex coalition
of activists and bureaucrats.
The growing primacy of anti-racist policy on the EU agenda has thus been
conducive to broad alliances, but less so to the cohesive framing of policy,
and a clear direction for anti-racist policy has yet to emerge. Interaction with
other aspects of social inclusion is also revealing, as the advocacy groups –
who play a significant role in the EU policy world – confront the need to
coordinate their complementary but at times competing interests. This same
tension also exists within the key institutions of the EU – the European
Parliament and the Commission – alongside an implicit contradiction
between member states which embrace differing varieties of assimilation
and multiculturalism. In practice, the question of ‘fit’ with the established
EU project has meant that economic rights tend to take precedence and
translate into an emphasis on integration through the labour market. How-
ever, the chapter argues that broad normative agreement is in itself a signifi-
cant achievement, and that even where the details of implementation remain
unclear or contested, such agreement serves to secure a significant value
position outside the realm of individual choice.
4 Social rights, trans-national
rights and civic stratification
Lydia Morris

We saw in the introduction to this volume that ‘rights’ have recently risen
to prominence as a focus for social, political and intellectual debate, yet as
Turner (1993) has argued, sociology as a discipline has no obvious founda-
tion for a contemporary theory of rights. While a sociology of citizenship
has to some extent served as a substitute, a number of critiques (e.g. Brubaker,
1989; Bottomore, 1992; Soysal, 1994) have argued that available frame-
works (usually based on Marshall’s (1950) classic work) are inadequate
to address a set of pressing contemporary issues. These include the growth
of transnational migration, the alleged expansion of ‘post-national member-
ship’, and the proliferation of positions of partial membership, to which we
can add the erosion of the social rights of full citizens. The analytical tools to
do justice to such phenomena are, however, underdeveloped and although
there have been various attempts to address this gap, there is as yet no
satisfactory comprehensive framework.
The introduction notes that one response to the question of how to think
sociologically about rights has been to move beyond nationally bounded
citizenship and to invoke the universal. However, while there has been grow-
ing interest and speculation about the scope and potential of universalism
(Turner, 1993; Soysal, 1994; Meyer et al., 1997), there has also been an
awareness of the limitations imposed by definitions of the national interest,
and a variety of recent contractions with respect to entitlement. In this con-
text, a focus on the power of universalism has only rarely engaged with a
number of common limitations and even erosions in the delivery of universal
human rights to non-citizens, much less with the constraints that are increas-
ingly imposed on full citizens. A growing emphasis on duties alongside
rights has been the site of some instances of contraction in contested areas of
provision, most notably in the area of welfare support, whose status as a
universal human right is far from clear. By addressing the specific issue of
welfare rights in the broader context of both the classical and emergent
literature on citizenship rights and migrant rights, this chapter seeks to
point the way to one possible foundation for a sociological approach to the
field that could yield a more nuanced analysis of rights than has yet been
available.
78 Status, norms and institutions
Class, status and power
One foundation for a fuller sociological approach to the issue of rights may
be found in Weber’s (1948) classic essay on class status and party, which
addresses the distinction between the social order or distribution of honour,
and the economic order of class situations determined by market position.
The key to class situation is the disposal of property through exchange in the
market, which functions to the great disadvantage of the propertyless, with
only their services to sell. Weber continues: ‘Those men whose fate is not
determined by the chance of using goods or services for themselves on the
market, e.g. slaves, are not, however, a class in the technical sense of the
term. They are rather a status group’ (ibid.: 183). A status situation is then
defined as: ‘every typical component of the life fate of men that is determined
by a specific positive or negative social estimation of honour’. For con-
temporary society Weber’s comments yield two dimensions of status, which
may be related: first, a fate determined outside the market; second, a posi-
tion defined by the values governing conferment (or otherwise) of social
honour. He also notes that status groups will tend to constitute com-
munities, and that ‘stratification by status goes hand in hand with a
monopolisation of ideal and material goods and opportunities’ (ibid.: 190,
emphasis added).
Status, as Weber defines it, is argued to be a hindrance to the operation of
the free market, and once a status order has established stability, its transla-
tion into legal privilege can easily follow. The relevance of this notion of
status for the study of rights lies in the conception of a formal position
outside the market, which in contemporary society is likely to be state sup-
ported,1 the less formalised dynamic attributing social honour to different
social groups, and the interesting possibility that these two dimensions may
coincide. One other aspect of Weber’s essay should be noted before we move
on, and that is the distinction between communal action, related to feelings
of mutual belonging, and societal action, based on a rational means – ends
orientation. The relevance of this distinction will become clear later in the
chapter, and potentially engages with two different possible bases for rights:
mutuality and contract. For the present, is takes only a short step to see the
relevance of Weber’s observations on status for a sociological understanding
of rights, in both their conception and operation.

Citizenship and social class

There are echoes of Weber’s position in Marshall’s (1950) work Citizenship
and Social Class, the first explicit approach to a sociology of citizenship.
Marshall sets out to examine the possibility that a basic equality associated
with the status of citizenship may not be inconsistent with economic
inequality. He begins with a brief account of what he describes as ‘the mod-
ern drive towards equality’ (ibid.: 7), noting its evolutionary development
 Social rights, trans-national rights and civic stratification 79
over a period of 250 years, and observing a continuing urge in this direction.
His account covers the chronological unfolding of civil rights associated
with personal liberty, political rights associated with participation and
social rights associated with a share ‘in the full social heritage and to live the
life of a civilised being’.
Marshall takes civil and political rights as formally established at the time
of writing, civil rights being essential to the functioning of a free market,
though he does note some impediments to their full realisation, which hinge
on class prejudice or on economic inequality. Thus, like Weber, he invokes
two dimensions of status: one based on a formalised position with respect to
the rights of citizenship, and the other based on the largely informal role of
wealth and prestige, hence underlining a potential fissure between entitlement
and delivery in the functioning of rights. However, the field of social rights is
the true focus of Marshall’s essay; the ‘invasion of contract by status’, which
subordinates the market to social justice, replacing bargaining with rights,
and ‘creating a universal right to real income which is not proportionate to
the market value of the claimant’ (ibid.: 28). While early forms of relief
commonly required a withholding of civil rights, Marshall observes that this
dynamic had been reversed in ‘modern’ society, such that social and economic
rights had often been achieved through the exercise of civil and political
rights. In relation to social rights, the role of status equality is deemed para-
mount, hence: ‘Equalisation is not so much between classes as between indi-
viduals within a population which is now treated for this purpose as if it
were one class. Equality of status is more important than equality of income’
(ibid.: 33). The same point is made of citizenship itself, in that ‘all who
possess the status are equal with respect to the rights and duties with which
the status is endowed’ (ibid.: 18). It is possible to interpret status here as both
a formal legal standing in society and an informal evaluation of worth.
The broad shape and substance of his position are well known, and there
have been a number of commentaries that point to the inadequacies of his
argument for contemporary analysis (see Bottomore, 1992), notably the
taken-for-granted standing of the nation state as his ‘community’ of refer-
ence. There are, however, a number of points to be derived from Marshall’s
essay, which still have a powerful bearing on the form and scope of a devel-
oping sociology of rights. The first is that in idealised form, the possession of
citizenship offers an equality of status whose effectiveness may be measured
against the standard of ‘full participation’ in society, though part of its
potential is to make the inequalities of the class system more acceptable, and
hence less vulnerable to attack. He also recognises that the full scope of
citizenship has not yet been realised, and that civil and political rights can
play a vital role in the expansion of other areas of entitlement. Conversely,
he argues that citizenship may itself be ‘the architect of legitimate social
inequality’, and that status inequality (in the sense of prestige or prejudice),
and economic inequality can both create impediments to the realisation
of formally held rights. Furthermore, he emphasises the state’s role in
80 Status, norms and institutions
balancing the collective interests of society and individual social rights,
though at the time of writing (1949) he detected a shift in emphasis away
from duties towards rights. He notes, however, that the relevant duties of
citizenship had as yet been only vaguely addressed, and that one must clearly
be the duty to work.
Each of these insights has implications for how we might build a sociology
of rights, and they recur in various forms in the discussion that follows.

Civic stratification
David Lockwood’s (1996) work on civic integration and class formation
systematically addresses a number of the issues sketched out or only hinted
at in the pieces by Weber and Marshall. His focus is on the way in which the
‘institutional unity’ of citizenship, market and bureaucracy mediates the
impact of social class in structuring life chances and identity. In capitalist
welfare state democracies, the common legal status of citizenship is argued
to have reduced institutionalised status difference but enhanced the institu-
tionalisation of power (embodied in state bureaucracies), such as to limit
incongruities in both fields. In terms of hierarchical status, this leaves only
what he terms the weaker forms of social inclusion and exclusion, and defer-
ence and derogation. However, like Marshall, Lockwood wishes to pose the
question of how far the central institutions of society function efficiently in
‘delivering the goods’, and what contribution they make to securing social
integration. In doing so, he throws light on a number of the key points of
interest listed above.
He notes, for example, that much of the legitimising effect of an equal
status of citizenship stems from the role of bureaucracies that oversee the
inequalities and rewards attaching both to occupational positions and to the
delivery of citizenship rights, by the application of impersonal rules (as
through the tax and welfare systems). Furthermore, like Marshall he sees
civil and political rights as a basic requirement for the functioning of capital,
leaving only the ‘fine-tuning’ of social rights to mediate the potential conflict
between status and contract. This means that governments have only limited
room for manoeuvre, which must rest on some form of selectivity based on
merit or demerit; in other words, the designation of deserving and undeserv-
ing claimants. Lockwood (1996: 536) also agrees with Marshall that ‘citi-
zenship remains an ideal whose actualisation is always less than complete’
and that its operations will therefore provide a potential focus for the
structuring of group interests, conflict and discontent.
This possibility is then explored with reference to two axes of inequality;
the presence or absence of rights, and the possession of moral or material
resources. The distinction captures the two different dimensions of status
referred to earlier, which are implicit in Weber’s essay, the one derived from
a formalised position,2 and the other principally from prestige factors of
either honour or wealth, which will often operate informally. On the basis of
 Social rights, trans-national rights and civic stratification 81
these two axes of inequality, Lockwood derives what he terms four types
of civic stratification – civic exclusion, civic gain, civic deficit and civic
expansion – which are in fact two sets of paired oppositions. Civic gain and
deficit refer to the enhanced or impaired implementation of rights,3 civic
exclusion refers to the formal denial of rights, while expansion may refer to
either the expanding claims of particular groups, or the expanding terrain of
rights more generally – and universal human rights are given as an example.
Bechhofer (1996) has already argued that civic exclusion and expansion sit
uneasily together, and here I suggest a slight amendment, pairing exclu-
sion with inclusion to denote formal access to rights, and introducing a
third opposition, civic expansion and contraction, to refer to the shifting
character of a regime of rights or of a specific area within its ambit.

Social rights and the underclass debate

A particular focus in this chapter is the dynamic of social rights, a form of
entitlement that departs from the passive freedoms of protection from, to
require the active provision of facilities and services by the state (see for
discussion Steiner and Alston, 1996). As both Marshall and Lockwood
observe, they represent the least consolidated aspect of citizenship rights and
offer governments most scope for negotiation. Certainly, the degree of com-
mitment contained in the UN Covenant on Economic Social and Cultural
Rights is rather limited. Although it espouses a set of minimum expectations
(Dent, 1998), states’ obligations are confined to what is feasible in resource
terms, with a commitment simply to develop provision over time. In prac-
tice, the availability of social rights has been very variable, and even in well-
developed welfare states there are impediments to their full achievement.
We have already noted Marshall’s comments on the tension between
status and contract, which subordinates the market to social justice, but in
doing so makes the setting of benefit levels rather contentious. The level
must inevitably be set with an eye to the income of the lowest-paid workers,
and has usually been associated with concerns about the erosion of a ‘work
ethic’ (see Morris, 1994). Further judgements are required about the legit-
imacy of claims in terms of both need and ‘membership’, and Freeman
(1986: 52) addresses the balancing act required of governments as follows:
‘The welfare state requires boundaries because it establishes a principle of
distributive justice that departs from the distributive principles of the free
market.’ In other words, the group of people protected by welfare must
somehow be delimited. Freeman poses this question in the context of
expanding immigration, and one mechanism for limiting rights is the nar-
rowing of legal entitlement, or civic exclusion in Lockwood’s terms, as con-
ventionally applied to migrants in the early stages of their stay or those
defined as ‘guest-workers’ (see below). However, even for full citizens, wel-
fare support will usually rest on decisions about both material need and
moral desert, invoking Lockwood’s reference to merit and demerit. As a
82 Status, norms and institutions
result, social rights under the modern welfare state involve both the ‘rational’
administration of national resources and the moral identification of a
‘legitimate’ claim.
The 1990s debate about an emergent British ‘underclass’ illustrates a
number of problems concerning how social justice and the market combine
in practice, and we immediately find examples of both formal exclusions
and informal deficits. The ‘underclass’ debate was transferred from America
to Britain, at a time when the tension inherent in welfare was heightened by
various social changes: notably the decline of the sole male breadwinner and
of the nuclear family household. Throughout the 1980s and 1990s attention
therefore focused on male unemployment and rising single motherhood,
both argued to be linked to aspects of welfare provision, and each thought to
raise questions about the acceptability of guaranteed social rights. One pos-
ition has argued that the ‘underclass’ is a group excluded from the increased
affluence of the majority population (Field, 1989), supported by evidence on
the inadequacy of benefit payments (Morris, 1996), the soul-destroying
nature of unemployment and the despair of many living in poverty (Jordan
et al., 1992). However, the dominant view was that the welfare state has
been over-generous, is abused by many and has created a culture of depend-
ency. This is thought to have undermined the work ethic and been damaging
to the stability of the nuclear family (Murray, 1990), such that welfare rights
have contributed to eroding the moral fabric of society.
Such arguments strike an odd contrast with Marshall’s idealised model of
social rights as the guarantee of social inclusion through social citizenship,
which he defined as full membership of the community. In practice, a right
to social inclusion is, for some groups, held to be questionable, and linked to
the condemnation of a culture of dependency we find the growth of policies
stressing social obligations above social rights, a theme that has persisted
and strengthened in the UK, despite a change of government.4 The major
obligation is now to work for a living (Green, 1999), and associated with
this growing emphasis we have seen increasing conditionality with respect to
welfare claims, which does little more than gesture towards the very unequal
regional and class distribution of opportunity. This conditionality operates
differently for different claimant groups, with the young unemployed sub-
ject to the most stringent controls and the retired elderly to the least, while
the mature unemployed, single parents and long-term sick and disabled
claimants occupy intermediate positions.
Of course, much rests on the manner in which the duties of welfare claim-
ants are imposed, but even throughout the high unemployment of the 1980s
and early 1990s, the field has been dominated by a scepticism about the
motivation of the benefit-dependent and a view that social rights had
become a destabilising force. In the case of long-term unemployment there
have traditionally been a number of means through which claimants must
demonstrate that they are deserving of benefit, one being submission to a
means test to prove need. Other conditions may include the demoralising
 Social rights, trans-national rights and civic stratification 83
proof of job search, and the question of whether the claimant is genuinely
available for work. The failure of such a test and denial of benefit would
amount to an instance of civic exclusion, but the test itself is regarded as
stigmatising, as is the receipt of the benefit. Thus Barbalet (1988: 66), for
example, argues that ‘It is likely that those most in need of social services
are least likely to receive them as rights properly understood.’ In other
words, the administration of the system detracts from the value of the right,
introducing a form of civic deficit to the realisation of social support.
There is clearly a tension between the right to welfare and the obligation
to be self-supporting where possible, and while Marshall noted the need for
some work requirement in relation to welfare, he also saw the consolidation
of citizenship as part of a movement away from duties towards rights.
Recent developments in the debate about citizenship have reversed this
dynamic, moving the emphasis away from rights and towards duties, and
supporting the assumption that the state-dependent must be compelled to
give something back to society. Though control is almost inevitably per-
vasive in systems of welfare, Van Reenan (2001) documents a shift away
from the late 1960s view of the unemployed as victims, who serve society
by accepting their fate, to an increasingly punitive approach as their num-
bers rose in the 1980s. In more recent policy this approach is ameliorated by
official statements (Cm 3805) in ostensibly enabling terms, which recognise
state responsibility for the provision of opportunity. However, the location
of responsibility often shifts with political rhetoric, hence ‘Opportunity
to all, responsibility from all. . . . I don’t think you can make the case for
spending tax-payer money . . . without this covenant of opportunity and
responsibilities together’ (Blair, 2000).
The history and background of both individual and community is surely
important here, and some account should be taken of the fate of previous
generations for whom the inheritance of a lifetime’s work in the coal pits,
steel works and shipyards has been damaged health, invalidity and/or
redundancy. Responsibility is only convincing as an argument where the
background distribution of assets and opportunities is reasonably equal.
Thus, while White (2000) supports some degree of conditionality, he never-
theless argues that disadvantaged individuals in non-egalitarian societies
have no moral obligation to cooperate in their own exploitation. On the
basis of the reciprocity principle implied by the ‘rights and responsibilities’
rhetoric, we should instead expect to see fair choice and opportunity, as well
as a decent share of the social product.
In fact, the New Deal for moving the young unemployed into work goes
further in imposing conditions on benefit than at any time since the launch-
ing of the post-war welfare state, withdrawing benefits from those who do
not accept an offer of subsidised employment, training or community work.
Some research, however, has questioned the quality of these ‘opportunities’,
which yield near poverty wages and a repeated experience of unemployment
(Dickens, 2001; Macdowell, 2002; Morrison, 2004). Nevertheless, the
84 Status, norms and institutions
scheme has been extended to the long-term unemployed (Lister, 2000) and
to a lesser extent to single parents, while the ‘economically inactive’ have
been made the object of recent attention (Guardian, 2005). This group
includes the disabled and long-term sick, who are now to be the latest focus
in a redrawing of the boundaries of rights and duties. While a denial of
opportunity to these groups would clearly be discriminatory, again much
rests upon the quality of opportunity offered and the degree of coercion
involved in its acceptance. But as Daly (2003) has argued, a small change at
one moment can pave the way for more substantial change through effects
on – among other things – normative expectations.

Gender and the underclass debate

Single mothers have always been a particular focus for concern in the under-
class debate, but while gender differentiation permeates the substance of
discussion, it is rarely made explicit in analysis. The dominant view in the
literature derives from Murray’s (1984, 1990) argument that the absence of
a male role model in the family unit is the key to explaining the alleged
growth of an underclass. This view firmly locates the task of socialisation in
the family, with the underlying assumption that a subculture of the under-
class is generated because the single mother is inadequate to the task of
socialisation. There have been two responses to this argument. One is based
on the assertion of rights, and cites the feminisation of poverty argument
(e.g. Bane, 1988), suggesting that women are being made to carry the burden
of society’s poverty, and that better provision should be made for them.
The other more dominant view is that some work requirement should be
placed on single mothers (e.g. Mead, 1986), both as a deterrent to welfare
dependency and presumably to foster the work ethic in their children.
While the latter position illustrates the social control dimension of welfare
rights, it seems not to address the real concern expressed in the underclass
debate, which centres on the alleged withdrawal of young men from the
labour force. Applying these arguments to the British situation, we find a
solution that brings women’s work role and family role into conflict and
raises questions about the basis for women’s social inclusion. Taken
together, poor employment options in part-time or low-paid work, along-
side the demands of motherhood, mean that many women require some
other source of support – the state in the case of single mothers, and for
married mothers a husband. Thus the gender-related issues that arise from
the debate about the underclass partly stem from unresolved questions
about the sexual division of labour in society, and the structuring and
restructuring of employment. Where constraints on welfare spending
impose tighter conditions on receipt of benefit, challenging the genuine
availability of single mothers for employment, these women may face a form
of civic exclusion (from benefit). In so far as their position of dependence on
the state evokes a negative moral judgement, they experience a deficit in the
 Social rights, trans-national rights and civic stratification 85
enjoyment of their social rights, while the absence of affordable child care
can also constitute a further deficit in relation to their right to work.
There has been considerable debate as to whether the ‘underclass’ consti-
tutes a social class, and if so whether it may be construed as such in its own
right, or is better viewed in terms of the labour market position of the
majority of its members. The answer to this depends in part on which aspect
of the debate one wishes to engage. For example, it is the labour market
position, or ‘class’ vulnerability of manual workers, particularly unskilled,
that leads to their concentration in long-term unemployment. But it is their
‘status’ position as state dependants that causes their stigmatisation and
thereby constitutes them as a group with common interests and potential for
a collective identity.5 The position of single mothers is more complex. They
are also likely to share a class position by virtue of their labour market
vulnerability and concentration in low-skilled, part-time work. However, it
is their ‘status’ as women that leaves them primarily responsible for child
care, and exposed to exploitation in this way (cf. Fraser, 2003), while their
relationship to the state confers a stigmatised dependency status should they
claim welfare support.

Status and contract in British welfare

In exploring the role of citizenship rights in relation to social cohesion,
Lockwood raised a number of questions about the integrative function of
citizenship. Earlier in this chapter, reference was made to Weber’s distinction
between communal action which he relates to a feeling of mutual belong-
ing, and societal action which applies to the rationally motivated adjustment
of interests. A similar opposition is to be found (by implication at least) in
Marshall’s distinction between citizenship as a status indicating full mem-
bership of a community and the contractual relations that dominate
exchange in the market. This same distinction now features in political
debate on the foundations for a claim to welfare, and indeed for rights more
generally.
In the British case, Sarah Hale (2004) has noted the rhetoric of community
at the heart of the New Labour image, but identifies an inconsistency in so
far as the basis of community is commonly expressed through the language
of contract, whereby rights or opportunities are offered in exchange for the
fulfilment of responsibilities. This element was of course present in Mar-
shall’s essay, by virtue of his reference to both the rights and duties of
citizenship, notwithstanding his view that the duties of citizenship were
somewhat vague and that the overall direction of change was away from
duties towards rights. The reversal of this dynamic has been noted with
respect to debate about the underclass (e.g. Mead, 1986) and Hale’s argu-
ment is that the logic of contract has come to dominate New Labour
thinking on welfare provision and entitlement, as for example expressed in
‘A New Contract for Welfare’ (1998). In her view, the effect is to supplant
86 Status, norms and institutions
the classical view of rights as inherent in individuals and to place them in
the gift of the state, which potentially sets up an embattled relationship.
Even Etzioni (2000: 29–30), one source of inspiration for the contractual
approach, cautions against the denial of rights for non-fulfilment of ‘responsi-
bilities’.
The more rights become conditional on particular requirements, the more
closely they are linked to enhanced control, as we saw in the above discus-
sion of the underclass debate. The implication of such a shift in emphasis is
to undermine the mutuality built into the welfare system, though Hale calls
into question the genuinely contractual basis of provision that is strongly
conditional and in some sense coercive. The element of choice in such an
agreement and the possibility of bargaining are argued to be the true founda-
tion for a contract, and these Hale finds to be missing if the alternative is
destitution. Her position interestingly echoes Marshall’s observation that
the recognition of the right to collective bargaining in late nineteenth-
century Britain meant that the strengthening of civil rights provided a pos-
sible route to social rights. He goes on to state, however, that this position
was transitional and that rights in their true sense should supersede the
need for negotiation of this kind; that ‘rights are not a proper matter for
bargaining’ (Marshall, 1950: 40).
There is perhaps a danger of polarising or even caricaturing debate, such
that the rights and duties linkage represents a zero-sum relationship. A more
realistic position is to recognise that rights are rarely absolute, and that a
judgement about reasonable balance is required. In the case of welfare rights
the concept of civic stratification alerts attention both to differential condi-
tions of access for different groups, and to the justifications that might sup-
port such difference. However, there is research which suggests that coercion
is only effective for those who are easy to help (and for whom it is arguably
inappropriate), and is ineffective for more difficult cases (Dean, 1998). It
could, in fact, have a negative impact, and we can begin to examine the
relationship between what have been described here as the formal and
informal aspects of status, and whether a tightening of formal conditions of
entitlement can negatively effect the informal standing of certain groups in
society. Hills (2001), for example, cites evidence to suggest that ministerial
rhetoric about welfare spending and levels of fraud can negatively affect
public sympathy for the plight of the unemployed, which has traditionally
been weaker than for other state-dependent groups (e.g. the elderly and
disabled). Finally, we might consider whether the conditions attached to
social support can impede the exercise of other rights.
The introduction to this chapter noted the growing significance of inter-
national conventions as ‘universal’ reference points for policy and debate
about rights, and as a source of adjudication. Thus, another approach to this
issue might be to look beyond the nation state and consider the standards
embraced in relevant conventions. As we saw above, the Covenant on Eco-
nomic Social and Cultural Rights offers little purchase, calling simply for the
 Social rights, trans-national rights and civic stratification 87
progressive development of social rights, in line with available resources.
While it might be possible to pursue the issue of resource availability, as a
basis for the assertion of unconditional rights the covenant’s hold on signa-
tory states remains rather weak. Another convention that might be relevant
is the International Labour Organisation (ILO) Employment Policy Conven-
tion (no. 122), which entered into force on 15 July 1966. However, this is
similarly exhortative rather than a strictly defined conferment of rights. It
requires signatory states to pursue policy designed to promote full, product-
ive and freely chosen employment, placing particular emphasis on choice
and opportunity. As such, it provides a statement of ideals against which
policy may be judged, and at least raises the question of how far the more
coercive dimensions of recent policy comply.

Civic stratification and migrant rights

Immigration is an issue for which claims to transnational conventions and
universal human rights are even more salient, as these rights purportedly
transcend the boundaries of the nation state. However, as with systems of
national welfare, the area of immigration engages a rather complex set of
interests and influence, in which the boundary drawing referred to by Free-
man (1995) is even more to the fore. Control of borders is the essence of
sovereignty and most liberal states in practice seek to regulate immigration
and prevent competition between citizen and alien workers, while also pro-
tecting national resources. Like welfare support for the unemployed, immi-
gration creates a tension between rights and markets, and a key question is
how states can manage the economic and humanitarian imperatives that
respectively underpin immigration and migrants’ rights.
Hollifield (1992) maintains that the liberal position that has prevailed in
both the USA and Europe provides a market-based incentive for labour
immigration, which is reinforced by rights-based politics, though he notes a
tension between these two aspects of liberalism (his ‘liberal paradox’). A
number of writers have emphasised the expansion of rights, and Soysal
(1994), for example, argues that citizenship has been superseded by the
rights of long-term residents, based on claims to ‘universal personhood’.
Meyer et al. (1997) also see states as firmly embedded in a world culture of
universalist values, which shapes their policy and actions, while Freeman
(1995) has identified an ‘expansionary bias’ in the immigration policies of
liberal democracies. The force of universalistic rights is central to his argu-
ment, and in particular family unification, under the right to family life,
though he notes a counter-tendency towards deterrence in dealing with
asylum claims, and an intensification of control.
Since Hollifield made his argument the field has become more complex –
as he predicted, rights-based immigration has facilitated considerable family
unification, and has also been associated with the arrival of asylum seekers
on an unprecedented scale, so much so that the nature of states’ commitments
88 Status, norms and institutions
to transnational rights has at times been called into question. In fact,
although most authors addressing the issue of transnational forces with
respect to rights concede some degree of complexity or contradiction
(Freeman, 1995: 889, 894; Meyer et al., 1997: 154; Sassen, 1998: 20), this is
rarely given detailed attention. The result is an overstatement of the impact
of transnational instruments or principles, despite the fact that closer exam-
ination of the transnational dimension of rights immediately introduces a
number of limitations to the argument.
A full understanding of state responses to immigration cannot be readily
construed in terms of either national closure or transnational expansion,
but must be approached in terms of the management of contradictory forces
(cf. Hollifield, 1992). To do justice to both the force and the limitations
of transnational dynamics we must therefore examine the principles that
govern the granting and withholding of rights, the qualifying conditions
of access and the nature of the interplay between domestic, transnational
and supranational law. An emphasis on the growing significance of uni-
versal, or at least transnational, rights has some foundation, but renders an
incomplete understanding. Indeed, while Brubaker (1989) emphasises the
continuing significance of national citizenship, he has also noted the absence
of a theory of partial or limited state membership (ibid.: 5), and his observa-
tions on the ad hoc proliferation of lesser statuses open up the possibility of
a broader perspective. This undertheorised phenomenon arguably holds the
key to a more nuanced understanding of migration and migrant rights,
which may be viewed as the outcome of a set of contradictory or conflictual
dynamics.
A means of advancing this view may be found in the civic stratification
framework described above, which can be extended beyond its initial focus
on the rights of citizenship to consider the position of non-citizens, while
remaining cautious with respect to what is claimed for universal, trans-
national rights. All advanced capitalist welfare states employ an elaborate
hierarchy of formal statuses for the designation of rights, with different
rights attaching to different statuses. An idealised notion of full citizenship
can be used as a yardstick against which to assess the impact of trans-
national rights for non-citizens, though we should not lose sight of the
possibilities of contraction even for full citizens. Marshall and Lockwood
both view civil and political rights as having been secured for full citizens,
while non-citizens are routinely denied full political rights, and we find their
civil rights can be selectively restricted, as in the case of detention for asylum
seekers.6 It is in the area of work and welfare rights, however, that we find
the most elaborate differentiation, and again we see the impact of two types
of status distinction: those operating primarily through the formal designa-
tion of immigration status, and those operating through the informal effects
of gain or (more probably) deficit.
 Social rights, trans-national rights and civic stratification 89
Welfare, work and immigration
Despite recent optimism about the post-national expansion of rights (Soysal,
1994; Sassen, 1998), international conventions have only limited power
over security of residence and social rights, and are constrained by the rec-
ognition of state control over entry and stay. So, for example, while the
International Convenant on Social and Economic Rights has a minimal core
of expectations whereby individuals should not be deprived of essential
foodstuffs and basic care (Dent, 1998: 7), this does not imply a right to
residence or protection from removal. Under the European Convention on
Human Rights (ECHR) the right to life and freedom from inhuman and
degrading treatment (articles 2 and 3) can be a basis for protection and
support, but only for those with no feasible alternative; for example, in cases
of failing health.7
Other conventions secure more substantive rights for specific groups; for
example, the European Convention on Social and Medical Assistance grants
equal treatment in social security for contracting parties (only) and prohibits
repatriation on the sole ground of need for assistance. This prohibition only
applies, however, after five years of continuous residence (Plender, 1999:
269). Thus with respect to social rights, those granted on the basis of ‘uni-
versal personhood’ are strictly limited, and the discourse of universality
applies more to aspirational effort than to established entitlements. Though
immigrants who have achieved full residence status will be accorded the
same social rights as citizens, formal distinctions by immigration status still
retain considerable force in relation to both work and welfare rights.
While one of the duties attached to the status of citizenship is the obliga-
tion to work, for non-citizens this is a closely guarded privilege to which
they do not necessarily have ready access. An exception to this rule comes
with the creation a single market in the EU, such that all citizens of
European Economic Area (EEA) states have the right to work and reside
across Europe.8 This arrangement aside, on the basis of their entry status,
transnational migrants may have the right to work completely denied or
restricted in a variety of ways – to a particular area of employment, or by
giving priority to citizens, or by limitations on the duration of their stay. It is
also common for entry to be conditional on ‘no recourse to public funds’ for
a specified period (up to five years in Britain), and even where access is in
principle permitted (as, for example, in Germany), receipt of social support
can be an impediment to achieving a renewal of residence and hence security
of stay. This connection between public funds and security of residence
again opens up the possibility that delivery of social rights can be harnessed
as a vehicle of control, and as a means of monitoring legal status.
The expansion of formal exclusions from aspects of social support, as in
Britain in the course of the 1990s (Bolderson and Roberts, 1995), created a
climate of suspicion surrounding any foreign-seeming claimant (NACAB,
1996). This can act as a deterrent to claiming even where a legitimate right
90 Status, norms and institutions
exists, and has also led to uncertainty about the boundary of entitlement,
again constituting a deficit. A similar dynamic operates with respect to the
difficulties incoming spouses and even black British citizens may experience
in realising the right to take employment (NACAB, 2000). The right exists
simply as the absence of a prohibition, which is difficult to demonstrate, and
the problem is heightened by sanctions imposed on employers who recruit
unauthorised workers. While these sanctions in theory serve to protect the
terms and conditions of employment for legitimate workers, they can have
the indirect effect of impeding some in the realisation of their right to take
work, hence creating a deficit.

Welfare as related to transnational rights

Given the weakness of welfare support as a universally acknowledged
entitlement, the ‘no public funds’ constraint can have an impact on claims to
other ostensibly universal rights, such as the right to family life (as in article
8 of the ECHR). This right is commonly cited as a principal source of con-
tinuing immigration, and one over which nation states have little control
(e.g. Hollifield, 1992; Soysal, 1994: 121; Freeman, 1995: 889). However,
there is an inherent ambiguity in the European Convention itself, which
accepts interference with family life (only) ‘in the interests of national secur-
ity, public safety or the economic well-being of the country’ (ECHR, article
8(2)), and distinctions are to be found between national citizens, EEA
citizens and others (third country nationals, TCNs).
While some countries (not including Britain) grant their own nationals
unconditional unification rights,9 for TCNs the ‘right’ is usually subject to a
test of the original migrant’s ability to house and maintain additional family
members. This in effect excludes them from social rights for a transitional
period – the duration of which may be nationally variable. Family unifica-
tion is not, therefore, established as a direct right, but may be made subject
to qualifying criteria that can themselves be open to interpretation, and may
change with national circumstances.10 Furthermore, there are common def-
icits in realising the right and meeting the associated conditions. Reliance on
informal sector employment can be an impediment to demonstrating self-
maintenance, especially since anticipated earnings for the incoming spouse
are not included in the calculation, and generally low income may interfere
with access to adequate housing in a competitive market. Where the condi-
tions for family unification involve an exclusion from public funds for a
specified period, this also has the effect of cutting families off from the
supports available to others, and even creating a hesitation to claim support
to which they are in fact entitled. Thus, the (qualified) right to family life is
formally stratified with respect to the conditions of entitlement (inclusion
and exclusion), and informally stratified with respect to its delivery in
practice (gain and deficit).
Key examples of absolute rights are international obligations with respect
 Social rights, trans-national rights and civic stratification 91
to recognised refugees and a variety of other statuses of protection. Under
the Geneva Convention the central obligation of receiving states is that of
‘non-refoulement’ – a commitment not to return the asylum seeker to a
situation that threatens life and freedom. There is an implied guarantee of
access to status determination procedures, but no obligation to facilitate the
arrival of asylum seekers at national borders. Indeed, the use of visas (JCWI,
1987) in combination with carrier sanctions (Cruz, 1995) has served to
create a deficit in accessing the right to seek asylum. The same may be said of
the EU practice that denies the choice of host country to the asylum seeker,
and permits one application only, usually in the member state of first arrival.
We should also note that the forms of protection available themselves consti-
tute a sub-system of civic stratification, ranging from full recognition,
through humanitarian protection, to discretionary leave or temporary
protection, each with different associated rights.
Welfare is significant in the treatment of asylum seekers as a further
example of the close interconnection between rights and controls, and
through the introduction of an element of stratification into systems of
social support. Asylum seekers in Britain are no longer granted the possibil-
ity of employment, and ‘late-claimers’ may be denied support, though the
provision of maintenance has been endorsed by British courts as necessary
for the pursuit of their claim.11 However, several countries have developed
systems of provision that are explicitly linked to deterrence, variously using
reception centres and/or largely cashless maintenance to discourage any who
might (it is believed) be drawn by the availability of direct payments through
the welfare system.12 The administration of such systems can provide a
means of keeping track of claimants that all but ties them to a particular
locality, especially where there is a compulsory system of dispersal (as in
Britain and Germany), linked in the German case with an overt denial of
freedom of movement outside of the local district. Should systems of sup-
port become too severe, however, there is a danger that this will provoke
withdrawal and subsequent loss of control. Though the legal status of asy-
lum seekers is secure until they receive a negative decision, they may still
become part of a floating population living on the margins of society, out-
side of any formal system of support. Furthermore, the continuing presence
of rejected asylum seekers is one source of an apparently expanding under-
ground population, who have difficulty asserting any contractual (employ-
ment) rights they may have, and receive social rights only in extremis.

Testing the boundaries of rights

The material presented here has provided ample evidence of the way in
which formal and informal status differences are a central factor shaping
entitlement and delivery of work and welfare rights – for both citizens and
non-citizens. We have yet to address the third dimension of civic stratifica-
tion: the scope for expansion or contraction of either a whole regime of
92 Status, norms and institutions
rights or a specific area within its ambit. This issue is in all probability
closely associated with some interplay between entitlement and estimations
of social honour, and there are a number of different potential linkages: a
granting of entitlement may lead to enhanced social standing; a contraction
in entitlement may encourage stigma; enhanced social recognition may
prompt entitlement; and a deterioration in such recognition may prompt a
contraction of rights. This is an area that awaits full empirical investigation,
but in separating out contraction and expansion from the analysis of formal
and informal status distinctions, we are encouraged to focus on the issue of
change, on the principal agents in distributional struggles over rights, and on
the different possible interactions between the formal and informal aspects
of status.
Judicial rulings have been one important factor, and Woodhouse (1998)
argues that in Britain the 1990s were characterised by a more interventionist
stance on the part of the judiciary, noting a relaxation of the rule that
requires applicants for Judicial Review to be personally affected by the deci-
sion. This opens up the possibility for various civil society groups (such as
Joint Council for the Welfare of Immigrants (JCWI), Child Poverty Action
Group and the Refugee Council) to be actively involved in bringing cases
before the courts. Woodhouse also cites a number of cases in which a nega-
tive right (such as the right to life, or the right to seek asylum) is deemed to
require the provision of positive rights of social support for its realisation,
and predicts an increase in judicial intervention to defend the rights historic-
ally associated with the welfare state. ‘Claims making’ has certainly become
a key issue in negotiating the dynamic expansion and contraction of rights as
civil society groups embrace an expansionary discourse on rights, often test-
ing its effectiveness in the courts. The unprecedented scale of asylum and
immigration legislation in Britain from 1993 onwards13 furnishes a number
of examples, and has been shadowed by a series of prominent cases
that have challenged government policy (for accounts, see Morris, 2002a;
Webber, 2004) with varying degrees of success.
This chapter has reviewed some contentious aspects of work and welfare
rights, as related to citizens, immigrants and asylum seekers. Each group
displays a differing combination of the formal and informal dimensions of
civic stratification, and each highlights some significant shifts in British pol-
icy. In the case of the welfare rights of citizens, we have noted a move away
from mutuality and towards contract in entitlement and delivery, and Flynn
(2004) has argued that a similar dynamic is at work in relation to immigra-
tion and asylum. He notes the expansion of opportunities for migrants in
possession of desirable skills, but the much more limited opportunities
available to lower-skilled migrants, which sit alongside harsh restrictions of
rights in the treatment of asylum seekers. Though differing in detail, these
tendencies are echoed elsewhere in Europe, and Flynn goes on to argue that
the apparently conflictual influences of the market and of rights have been
united in a set of utilitarian principles related to growth and modernisation.
 Social rights, trans-national rights and civic stratification 93
For him, the concept of absolute rights has become all but obsolete, while
the privilege of rights is increasingly reserved for those who can show their
usefulness in the growing, dynamic world economy.
This chapter has focused on rights to work and welfare, an area in which
international conventions have only limited purchase, and where provisions
commonly rest on varied qualifying criteria and behavioural conditions. It
has been argued that the concept of civic stratification is helpful in analysing
both the differing statuses of formal entitlement and their relationship to
informal aspects of gain and deficit. Above all else, what the material reveals
is the dynamic nature of rights, and their close association with aspects of
control. Marshall offered us an evolutionary account of the progressive
unfolding of the rights of citizenship, and observed a forward urge in
this expanding field. Similarly, Lockwood noted the push for ever fuller
citizenship, captured by his reference to ‘civic expansion’. The debates and
developments recorded above, however, show the terrain of rights as a shift-
ing one, where we can find contractions as well as (and even alongside)
expansions. This calls attention to the role of government policy interests,
political rhetoric, the involvement of the judiciary and the impact of
civil society groups in negotiating the profile of rights that are rarely
demonstrably ‘self-evident’.

Notes
1 For example, single mothers, the disabled, the long-term unemployed, the
elderly.
2 For example, location vis-à-vis the market, or immigration status.
3 Lockwood (1996: 537) makes a further division into the three sub-areas of
power, stigmatisation and fiscal deficits.
4 A New Labour Government came to power in 1997 and has continued the trend
to tighter conditions on welfare benefits, especially, but not exclusively, for the
unemployed.
5 See Lockwood (1996) for an argument that the potential for collective identity
and action is unlikely to be realised.
6 Detention facilities for asylum seekers in Britain rose from 900 in 1997 to 1750
in 2004 (Guardian Weekly, 24 September 2004). Their use is not confined to
rejected applicants.
7 See European Court of Human Rights case D v. UK, application number
30240/96.
8 Council Directive L 16/44 will extend this right to long-term resident TCNs.
9 Usually limited to the immediate nuclear family (as in Germany), but possibly
including dependent parents (as in Italy).
10 A European Court of Human Rights ruling in 1985 found gender discrimination
in Britain’s rules on family unification, which disadvantaged women seeking
unification with a spouse, as compared with men. The clear objective of the rule
had been job protection, and the British response was to equalise downwards,
further limiting the rights of men (Bhabha and Shutter, 1994: 76).
11 For British examples, see 1996 AII ER 385, and 1997 1 CCLR 85.
12 For a challenge to this argument, see Bloch and Schuster (2002).
13 Five acts plus the Human Rights Act (HRA), which also has a bearing.
5 ‘Women’s rights are
human rights’
Campaigns and concepts
Diane Elson

The claim that ‘women’s rights are human rights’ has served as a focus
for organizing and advocacy by large numbers of feminist organizations
throughout the world since the early 1990s. However, during the same
period many feminist social and political theorists have been very critical of
the concept of ‘universal rights’, and of the deployment of the concept of
‘women’. This chapter explores what lies behind this apparent discord and
discusses how far feminist theory and practice can be reconciled.
To provide a framework for sociological interpretation, I draw on the inter-
change in Sociology between Bryan Turner and Malcolm Waters (Turner,
1993, 1997; Waters, 1996) and on two recent articles in Economy and Society
by feminist theorists Kate Nash and Sylvia Walby (Nash, 2002; Walby, 2002).

Sociology of human rights

There is a large body of sociological analysis of citizenship rights, but socio-
logical analysis of human rights is sparse and began only in the 1990s. The
pioneering debate between Turner and Waters exemplifies two different
approaches. Turner wants to construct an understanding of the moral
appeal of human rights: on what grounds can we make sense of the moral
force of a claim to have a right by virtue of being human rather than by
virtue of a particular system of laws? In contrast, Waters wants to construct
an explanation of the emergence and operation of human rights institutions
at a specific time and place; he asks the question, whose interests do such
institutions serve?
Turner argues that without some universal foundation, a recognition of
some shared human experience, it is impossible to talk of justice. He founds
the morality of human rights not in the capacity to reason, but in a combin-
ation of universal bodily frailty, experience of the precarious nature of the
protection afforded by the law and the state, and emotional capacity for
empathy. The first two of these features can be interpreted as explaining the
need for rights that derive their legitimacy beyond the state; and the first and
last as explaining the possibility of the recognition of the moral claims of
other human beings:
 ‘Women’s rights are human rights’ 95
Ultimately my argument has to assume that sympathy is also a con-
sequence of, or supplement to, human frailty. Human beings will want
their rights to be recognized because they see in the plight of others their
own (possible) misery. The strong may have a rational evaluation of the
benefits of altruistic behaviour, but the collective imperative for other-
regarding actions must have a compassionate component in order to
have any force. The strong can empathize with the weak, because their
own ontological condition prepares them for old age and death.
(Turner, 1993: 506)

The invocation of empathy points to the importance of social connection,

not just individual experience, in the moral appeal of human rights. As
Turner concludes: ‘In my argument, it is from a collectively held recognition
of individual frailty that rights as a system of mutual protection gain their
emotive force’ (Turner, 1993: 507).
Waters argues that the important task for sociologists is to explain the
social construction of human rights, including the historical origins of
human rights institutions, and historical and cultural variation in the mak-
ing of human rights claims. For this, we need to look at the interplay of
specific interests rather than supposedly universal experiences of frailty, pre-
cariousness and empathy: ‘the institutionalization of rights is a product of
the balance of power between political interests’ (Waters, 1996: 595).
Waters argues that the production (in 1948), and subsequent use, of the
Universal Declaration of Human Rights can be explained in terms of four
sets of interests: the interests of the victors of the Second World War in
stigmatizing and penalizing those they defeated; the interests of the two sides
in the ‘Cold War’ that followed in undermining each others’ legitimacy; the
interest of superpowers in legitimizing intervention in the affairs of other
states; and the interests of disadvantaged groups in being able to claim
human rights. The moral force of human rights derives from the collective
endorsement of such rights, even though the motivations and interests
underlying this endorsement vary. There is no need, in his view, for any
further explanation.
In response, Turner argues that Waters’s account of human rights, as
merely the agreed outcome of specific political struggles, cannot account
for their moral authority. To explain this, Turner argues, it is necessary to
go beyond the contingent circumstances of the social construction of par-
ticular human rights institutions and practices, to identify universally shared
human characteristics to which human rights respond.
A weakness in Turner’s argument is the unproblematic assumption of a
universal ability to empathize, to put yourself in the place of the other. In a
later discussion, he links this ability to the experience of bodily frailty: ‘vul-
nerability opens us to social interactions with and dependency on other
social agents. . . . There are social processes of interaction that produce
countervailing forces (emotions) of trust, sympathy and empathy’ (Turner
96 Status, norms and institutions
and Rojek, 2001: 123). But he has to admit that ‘sympathy appears to be in
short supply in places like Bosnia’.
If sympathy were always freely available in adequate quantities, it is hard
to see why we would need human rights. Human rights address the limita-
tions of sympathy with others, as well as stemming from the possibility of
sympathy with others. Human rights institutions and practices address our
moral frailty as well as our bodily frailty. They oblige us to extend our
sympathies beyond those belonging to our group (whether it is our family,
community, ethnicity, nation, gender, age group, etc.). The interplay of
political interests at particular times and places helps to explain how far
these obligations are recognised and met. The approaches adopted by
Turner and Waters are not mutually exclusive, as Turner (1997: 566) recog-
nizes. A sociology of human rights needs both approaches to make full sense
of human rights.
Walby (2002) and Nash (2002) are both valuable pioneering contribu-
tions to a sociology of gender and human rights. Sylvia Walby’s approach is
similar to that of Waters. In the introduction to her article, she explains that
she seeks to understand some specific constructions and appropriations of
human rights by feminist groups in the 1990s:

neither the use of the notion of equal rights nor demands on the state are
entirely new within feminism, but both the extent of the use of univer-
salist conceptions of human rights . . . and the extent of the orientation
to states constitute new developments. This raises a number of questions
as to how this is to be understood and why this is happening.
(Walby, 2002: 533)

In providing an answer, Walby points to: structural changes in the gender

regime; women’s increased access to economic and organizational resources;
changes in political opportunity structures; and globalization. She recog-
nizes that the framing of feminist demands in terms of universal human
rights is a challenge to much contemporary feminist theory, which has
stressed the salience of differences between women, and criticized discourses
of rights as androcentric, ethnocentric and too individualistic. But her main
concern is not to legitimize the invocation of human rights by feminist
activists, but to explain it in terms of historical developments.
Kate Nash’s approach is more like that of Turner, conceptual rather than
historical. She is concerned with the moral force of appeals to human rights,
and with the ‘normative timidity’ of some contemporary feminist theory.
She subscribes to the anti-essentialism of post-structural feminism; but is
sensitive to the criticism that it is ‘unable to elaborate universal principles
that would constrain the unjust possibilities that must arise if contestation
and the openness of ungrounded universalism are the only ideals to which
we subscribe’ (Nash, 2002: 416). She argues that a normative commit-
ment to equality is indispensable to feminism, but seeks to ground that
 ‘Women’s rights are human rights’ 97
commitment in an ontology of the fluidity of human difference (‘there is
nothing about sexual difference which is fixed or necessary’; ibid.: 420),
rather than the absence of difference. Though Nash does not specifically link
her argument to the sociology of the body, one might perhaps see it as
grounded in the universal experience of bodily change through the life
course, a point also recognized by Turner.
The rest of this chapter explores in more detail the campaigns and con-
cepts underlying the claim that ‘women’s rights are human rights’, drawing
on research that refers to activism and scholarship of women in both the
‘South’ and ‘North’ of the globe.

The emergence of a global feminist movement

Despite the promise of her introduction, Walby devotes most of her article to
explaining the increased orientation of Western feminist organizations to the
state in the 1990s. The articulation of feminism through a discourse of
human rights is treated (briefly) as an extension of campaigns to stop vio-
lence against women. These, in Walby’s account, moved from the establish-
ment of autonomous women’s projects (such as rape crisis centres and
refuges for battered wives), to an engagement with state institutions to
secure policies to reduce the incidence of violence and offer state support to
women victims of violence, to an engagement with inter-state institutions
such as the European Union, and ultimately to the United Nations:

By the early 1990s this demand to stop men’s violence against women
was articulated in international forums, including those of the UN. . . .
This was translated into language and concepts more appropriate for
the predominantly male forum of the UN, that is the language of human
rights rather than men’s oppression of women.
(Walby, 2002: 541)

Walby sees this as typical of a general trajectory of feminist activism in

industrialized countries, from a politics of small, autonomous women’s
groups to attempts to mainstream gender equality and equal rights in public
policy, at national, regional and international levels, through coalitions and
alliances between different groups of women. She argues that this was facili-
tated by a change in the gender regime, from a more domestic form to a
more public form, marked by greater female participation in labour mar-
kets, in civil society institutions and in the state, as more women became
officials and elected representatives. This provided women with more access
to economic and organizational resources and new political opportunities.
Walby suggests that globalization (which she defines as ‘a process of
increased density and frequency of international or global social interactions
relative to local or national ones’; ibid.: 534) projected this trajectory
beyond the national to the global level in two ways. First, it facilitated
98 Status, norms and institutions
increased communication between feminist organizations in different parts
of the world, and strengthened international feminist networks. Second, it
facilitated the opening of new political spaces beyond the nation state.
However, this interpretation of globalization does not foreground the diver-
sity of global interactions. While some are benign and founded on mutual-
ity, they take place in a context shaped by asymmetric and disruptive global
interactions structured around the pursuit of profit, not mutuality. Because
of this, globalization is a contradictory process.
Though Walby, referring to the 1990s, writes of a discourse of human
rights being ‘strategically utilized by collectively organized women’ (ibid.:
549), she does not enter into discussion of how these strategies were con-
structed and what prompted the engagement with human rights. The history
of this engagement is longer and more complex than emerges from Walby’s
account. Arvonne Fraser (1999: 888) points out that advocates of women’s
rights were active in the UN from its foundation in 1945, including women
from the ‘South’ as well as from the ‘North’: ‘Led by South American dele-
gates, notably women from Brazil, Mexico, and the Dominican Republic,
and with support from Indian and North American NGOs, the linkage
between women’s rights and human rights was effectively made in the UN
Charter in its introduction and in four separate articles.’ The Human Rights
Commission almost immediately set up a Sub-Commission on the Status of
Women. Many women in the national delegations to the UN General
Assembly lobbied for this to become a free-standing Commission and this
was agreed in 1946.
Women’s rights advocates were active in the drafting of the Universal
Declaration of Human Rights, and argued strongly for inclusive language,
with Mrs Mehta from India objecting to the use of terms such as ‘all men’
and ‘brothers’. Fraser (ibid.) argues that such interventions led to the exten-
sive use of the term ‘everyone’ in the Declaration. Fraser explains the
engagement of women’s rights advocates with the founding of the human
rights system, and their later engagement with the system in the 1990s,
through factors similar to those invoked by Walby. She points to the increase
in women’s participation in the paid labour force in the Second World
War, the success of the movement to get the vote for women in national
elections, the presence of women in civil society organizations (especially
the international labour movement) and women’s experience in lobbying
governments.
The Commission on the Status of Women (CSW) was active in securing
the adoption of a number of Conventions on specific areas of women’s
rights in the 1950s and 1960s, including economic and social rights, as well
as civil and political rights. The younger generation of women in the new
autonomous feminist groups that began to be formed in the industrialized
countries in the late 1960s did not engage with the CSW and the human
rights system (Fraser, ibid.: 893), but ‘second wave’ feminism did begin
an engagement with the UN system in 1975. When the first UN
 ‘Women’s rights are human rights’ 99
inter-governmental conference on women was held in Mexico in that year, a
conference of non-governmental organizations (NGOs) was held, parallel to
the inter-governmental conference, in which many women from autono-
mous feminist groups (from both ‘South’ and ‘North’) participated.
The inter-governmental conference called for the drafting and adoption
of a new overarching human rights treaty, the Convention on the Elimin-
ation of All Discrimination against Women (CEDAW). This was achieved in
1979. According to Fraser, most of the new feminist groups did not pay
attention to CEDAW, but this was to change with the Third UN Women’s
Conference in Nairobi in 1985. There were 15,000 women at the parallel
NGO Forum and a number of international women’s rights networks were
set up. International Women’s Rights Action Watch was organized to moni-
tor and support the implementation of CEDAW (ibid.: 901), and three
important regional networks were set up: the Latin American Committee
for the Defense of Women’s Rights; the Asia-Pacific Forum on Women,
Law and Development; and Women in Law and Development in Africa
(Friedman, 1995: 24). Nevertheless, Fraser acknowledges that until the issue
of violence against women came to widespread prominence, the majority of
women’s organizations did not pay any attention to the human rights
system.

Feminist organizations claim human rights for women

Fraser explains how the CEDAW Committee (the official UN body that
monitors compliance with CEDAW) took up the issue of violence against
women in 1989 and 1992, through General Recommendations 12 and 19,
which made it clear that although CEDAW itself does not specifically mention
violence against women, gender-based violence constitutes discrimination
against women and thus violates the convention.
She reports that: ‘The momentum around the issue [of gender-based
violence] made women’s human rights the most dramatic agenda item at the
1993 World Conference on Human Rights’ (Fraser, 1999: 903). But Fraser,
who served both as a director of International Women’s Rights Action
Watch and as a member of the US official delegation to the Vienna Confer-
ence, does not acknowledge the way in which feminists campaigning for
women’s rights and against gender-based violence had criticized the human
rights system. Their aim was not just to make women’s human rights a
‘dramatic agenda item’ but to contest existing understandings of human
rights and create new ones. In contrast, Walby (2002: 541) does recognize
that there was ‘a call for a transformation of the existing human rights
agenda and for a new interpretation that placed women’s issues at the heart
of the mainstream’.
A leading role in articulating the call for transformation was played by
Charlotte Bunch, Director of the Center for Women’s Global Leadership at
Rutgers University. Bunch argued that women’s rights were not generally
100 Status, norms and institutions
understood to be human rights by governments, by human rights NGOs and
by the UN Commission on Human Rights. She suggested that:

In the UN system, the Human Rights Commission has more power to

hear and investigate cases than the Commission on the Status of Women,
more staff and more budget, and better mechanisms for implementing its
findings. Thus it makes a difference what can be done if a case is deemed
a violation of women’s rights and not of human rights.
(Bunch, 1990: 492)

Bunch noted the existence of CEDAW but doubted its capacity to address
violence against women effectively, arguing that ‘Within the UN, it is not
generally regarded as a convention with teeth’ (ibid.: 496), and that it is
treated by governments and most NGOs as a document dealing with rights
that are ‘secondary’ to real human rights. (These arguments were supported
by other feminist commentators, such as Stamatopoulou, 1995). About one-
third of states that have ratified CEDAW have entered substantive reserva-
tions to various articles of the treaty, meaning that they have not undertaken
to implement it in full. This is more than for any other international human
rights treaty. Some of the reservations in effect nullify some of the most
important provisions of the treaty (Zwingel, forthcoming).
What was required, argued Bunch, was something more radical: a ‘re-
visioning’ of human rights from a feminist perspective, without waiting
for ‘permission from some authority to determine what is or is not a
human right issue’ (Bunch, 1990: 497). At the core of Bunch’s ‘re-visioning’
is a requirement to break down barriers ‘between public and private, state
and non-governmental responsibilities’ (ibid.: 497). Only thus, she argued,
would abuses that ‘arise specifically out of gender such as reproductive
rights, female sexual slavery, violence against women, and “family crimes”
like forced marriage, compulsory heterosexuality and female mutilation’
(ibid.) be addressed. Bunch thus explicitly recognizes the androcentric-
ism of human rights (much criticized by feminist legal scholars, such as
Charlesworth, 1995; and feminist social theorists, such as Peterson and
Parisi, 1998), but believes that this is a historically determined aspect that
can be changed. I would suggest that her arguments may also be seen as an
extension of, rather than a break with, the claim of the autonomous femi-
nist groups of the 1960s and 1970s that ‘the personal is political’. They
also represent a challenge to the status order of the time, whereby the
position of women, and their associations with the private sphere, took a
poor second place to abuses of rights (especially civil rights) in the public
sphere.
Bunch envisages ‘re-visioning’ of human rights as a possibility because she
sees human rights as not only ‘one of the few moral visions ascribed to
internationally’ (Bunch, 1990: 488) but also as a dynamic and open-ended
idea, its meaning expanding ‘as people reconceive of their needs and hopes’
 ‘Women’s rights are human rights’ 101
(ibid.: 487). This is an approach that fits Nash’s approving description of an
‘anti-foundationalist’ approach as comprising:

reflexive consideration of the ultimate grounds of truth claims or moral

universals with a view to understanding how they have been contin-
gently established in particular texts or historically specific traditions of
thought. Such an understanding is supposed to contribute to the con-
testation of their unquestioned status as foundations and so to the dem-
ocratization of thought (though not to the eliminations of foundations
as such, which are indispensable to thought).
(Nash, 2002: 416)

But theory is never enough: Bunch recognized that feminists could not
change the meaning of human rights simply by argument; they had to work
through the ‘due process’ of human rights institutions to secure a new con-
sensus among governments, UN human rights institutions and human rights
NGOs. This was possible because the repertoire of human rights instru-
ments extends beyond the drafting, signing and ratifying of treaties, to
include the ‘General Comments and Recommendations’ of treaty bodies
(like the CEDAW Committee), the ‘Concluding Observations’ of these
bodies on reports submitted by governments, the reports of ‘Special Rappor-
teurs’ on specific topics and the deliberations of the UN General Assembly,
and of UN world conferences on specific topics.
UN world conferences are particularly important because accredited
NGOs are allowed to attend as observers, and because the practice has
grown of facilitating parallel or satellite NGO meetings, beside the inter-
governmental meetings. The UN Conference on Human Rights in Vienna in
1993 provided the ideal opportunity to promote a ‘re-vision’; and Bunch
was one of the leaders of a well-organized international movement of hun-
dreds of thousands of women from around the world that ensured that the
Vienna Declaration initiated the construction of such a new consensus
(Friedman, 1995). It stated that ‘the full and equal enjoyment by women of
all human rights’ must be a priority for national governments and the UN
system. It led to the appointment of a UN Special Rapporteur on Violence
against Women and the adoption of a Declaration on the Elimination of
Violence against Women by the UN General Assembly. Nash (2002: 417)
comments that ‘The use of human rights to challenge structures and
incidences of violence against women across the world has been the most
successful way of extending human rights to women.’

Half of humanity: the fight for equal status

Why did so many women in so many countries agree with Bunch’s diagnosis
of the androcentrism of the human rights system, yet also agree with her that
the human rights system could be enormously valuable in the struggle to end
102 Status, norms and institutions
systemic gender-based violence against women, and in other struggles to
increase women’s well-being? Friedman (1995) and Stivens (2000) go some
way to answering this question. Both point to the perception that the human
rights system has widespread international legitimacy, even though it is
reinterpreted and reworked in different ways in different places. Stivens
(2000: 8) suggests that the prominence given by feminists to the human
rights system in the 1990s is also linked to ‘the political and intellectual
decline of the left, with human rights acting as a global rallying point for
intellectuals and activists stricken by its collapse worldwide’.
Friedman mentions that several of the activists she interviewed, including
Bunch, also linked the rise of human rights to the decline of other forms of
social internationalism. She also points to the significance of the disillusion
of women activists in Latin America with the fruits of democracy. Women
played a major role in the struggle to end the dictatorships, often drawing
upon their roles as mothers to give their protest legitimacy. However, dem-
ocratization did not fully include the realization of their rights, nor address
the issue of systemic violence against women (Molyneux and Razavi, 2002).
Women in Latin American quickly realized the limitations of the democratic
state, and turned to human rights not as much as an extension of their
engagement with the democratic national state but as a necessary corrective
to reliance on the actions of democratic national states.
One of the Latin American activists interviewed by Friedman makes an
important point about women’s strategic use of human rights: ‘they began
to use the human rights framework to advance women’s rights. Instead of
claiming rights as women, they claimed the human rights of half of humanity’
(Maria Suarez, Costa Rica; Friedman, 1995: 22).
In parts of Asia and Africa, women activists invoked a ‘re-visioned’
human rights system strategically to counteract the deployment of falsely
static and homogeneous notions of ‘tradition’ and ‘culture’ by male politi-
cians keen to preserve the existing gender regime (Rao, 1995; Stivens, 2000).
They also reminded men that women want ‘social justice in accordance with
internationally accepted standards’ (Friedman, 1995: 23).
Globalization was a further reason to turn to human rights: not the
benign globalization of social interactions described by Walby (2002: 534),
but the asymmetric and disruptive globalization that wrenches people from
their homes and deposits them in a strange land. Human rights provides an
indispensable resource for campaigning for the rights of people who lack
citizenship rights in the country in which they live, a group whose numbers,
both male and female, have rapidly increased as a result of intensified
migration, both documented and undocumented (Sassen, 1996; see also
Chapter 4). Indeed, the human rights system, which includes economic,
social and cultural rights, as well as political and civil rights, may (with some
‘re-visioning’) provide a basis for women to contest the fundamental asym-
metry of globalization, which privileges the property rights of owners of
large amounts of capital above all other rights (Elson and Gideon, 2004).
 ‘Women’s rights are human rights’ 103
Feminist activists claiming human rights are under no illusions about the
efficacy of the human rights system. They understand that international
implementation mechanisms are weak; and recognize that human rights
treaties ultimately depend for their implementation on the actions of states
(Zwingel, forthcoming). Nevertheless, the human rights system provides an
additional space for political struggle in which even states that in formal
terms are democratic can be ‘named and shamed’ for their failure to promote,
protect and fulfil human rights. As Nash (2002: 417) notes, ‘symbolically,
rights discourse provides a powerful vocabulary for challenging wrongs.
Feminist activists therefore advocate the extension of human rights, despite
their limited effectiveness, because of the way they can contribute to a culture
in which justice is furthered as an ideal.’
Walby (2002: 546) sees the turn to human rights as a turn away from
anti-systemic politics; but the human rights system has some capacity to
support anti-systemic politics, as well as to uphold the status quo (Baxi,
2002; Elson and Gideon, 2004). Much depends on how human rights are
deployed and by whom. When women’s human rights are invoked to justify
US invasions of other countries, clearly it is imperial power that is being
upheld. But demands for an end to systemic gender-based violence against
women, and for the realization of women’s economic, social and cultural
rights, can be an important challenge to existing configurations of male and
class power (Bunch, 1990; Elson, 2002; Molyneux and Razavi, 2002).

Universality, difference and equality: deconstructing

and reconstructing the conceptual basis for women’s
human rights
Feminist social and political theorists have criticized concepts of universal
rights as andocentric. They have argued that a false universalism has been
promulgated, which in fact is not universal at all but based on the experience
and needs of men. Rights are available primarily in the public sphere, not in
the private sphere. This critique has been developed mainly in relation to
citizenship rights (e.g. Phillips, 1992; Lister, 1997; Vogel, 1997) but is also
applicable to human rights. Feminist postcolonial theorists have revealed the
ethnocentricism of deployments of universal human rights that cast women
in postcolonial societies as ‘the Other’, lacking any agency, requiring rescue
by Western women (e.g. Lazreg, 1990; Mohanty, 1991). Post-structural
feminists argue that ‘women’ are not an already existing constituency, but
one that has to be constructed (Nash, 2002: 423).
These criticisms have not stopped feminist activists, neither in the West,
nor in other regions of the world, from claiming human rights for women.
But they have done so in ways that reject abstract universalism and simul-
taneously claim both universality and difference. In asserting that ‘women’s
rights are human rights’, they have simultaneously claimed that women are
half of a universal humanity; and that this humanity is differentiated into
104 Status, norms and institutions
women and men, who suffer systematically different abuses of their human
rights. Both men and women suffer bodily frailty, but abuse of this frailty
takes systematically different forms, and involves different kinds of power
relation. Violence against women is argued to be systemic, not random, or
individual or personal, and to be central to maintaining male power over
women (e.g. Heise, 1989; Bunch, 1990). Nevertheless, everywhere women
resist, despite their vulnerability. While the specificities of gender-based vio-
lence differ between different countries and cultures, as do the most urgent
and appropriate ways to combat this violence, feminist activists have been
able to construct international coalitions based on the recognition of vio-
lence against women as a systemically determined violation. Such activists
have constructed a politics of ‘differentiated universalism’ (Lister, 1997),
recognizing difference both between men and women and between different
groups of women, and reworking human rights to create new meanings
and practices that strive to avoid androcentrism and ethnocentricism, and
to claim equal human rights for all women and men. It is a politics
that appreciates diversity but does not displace a normative commitment to
equality.
But there is a danger that difference, once recognized, may become
essentialized, and rendered static and fixed. This is the danger that most
concerns Nash, who locates herself as a post-structuralist feminist. She dis-
tinguishes two different existing visions of equality: the ‘difference’ vision
and the ‘degendering’ vision (Nash, 2002: 419). The ‘difference’ vision sees
men and women as physically, socially and psychologically different. The
problem is that the qualities that women possess are given less social value
than those that men possess. Equality requires that these different qualities
should have equal social value. Nash rejects this vision because it may
contribute to solidifying current patterns of gender difference. The ‘degen-
dering’ vision sees differences between women and men as shaped by gender
stereotypes, and calls for the elimination of these stereotypes, and the elim-
ination of any gendered pattern of social valuation. This vision is linked to
an ideal of androgyny, which Nash rejects because it eliminates rather than
celebrates diversity. She argues for a third vision – ‘deconstructive equality’
– which would involve:

the continual disruption of gendered practices and identities without

penalty or disadvantage to any person. In other words, it would mean
the transformation of social practices such that any sex, gender or sex-
ual orientation – and poststructuralist feminists would not expect these
to be binary – could be occupied by any individual, was always open to
contestation and change and was not discriminated against.
(Nash, 2002: 421)

Nash then examines the text of CEDAW and finds that there is within it
some scope for all of these visions; including her ‘deconstructive’ position,
 ‘Women’s rights are human rights’ 105
for which she finds some support in article 5 (a) (the most radical article in
CEDAW), which requires states ‘To modify the social and cultural patterns
of conduct of men and women, with a view to achieving the elimination of
prejudices and customary and all other practices which are based on the idea
of the inferiority or the superiority of either of the sexes or on stereotyped
roles for men and women.’
This enables her to conclude that it is possible to understand human
rights in a way that does not undermine the post-structuralist commitment
to ‘continual contestation, disruption and difference’ (Nash, 2002: 416).
However, she has to admit that women’s movements across the world are
more oriented to the ‘difference’ model of equality, and that a commitment
to ‘deconstructive’ equality is rare (Nash, 2002: 427, 428). Certainly the
arguments used by Bunch for understanding violence against women as a
human rights violation reflect the ‘difference’ vision of equality. She quotes
approvingly the statement by Lori Heise that ‘This is not random violence
. . . the risk factor is being female’ (Bunch, 1990: 490). Although ‘compulsory
heterosexuality’ is included in the list of abuses of women, the argument
is for the most part constructed on the basis that there are two sexes, and
the problem is to end the domination of the female sex by the male sex.
It is not surprising that the post-structuralist values of continual contest-
ation and change do not have a widespread appeal to women. For all but
the most well-off and most self-confident, disruption is frequently experi-
enced as insecurity, not an opening up of exciting new possibilities, and
asymmetrical globalization often intensifies the negative aspects of social
flux. A focus on broadening and equalizing the range of capabilities enjoyed
by women and men is probably a more appealing form of fluidity than an
emphasis on continual contestation and complete openness. This might
be called ‘transformative’ equality, and has to be underpinned by support-
ive economic, social and political structures that enable people to experi-
ment and take risks by guaranteeing their enjoyment of the economic,
social and cultural human rights (such health, education, an adequate
standard of living and full participation in the public life of the commu-
nity). ‘Transformative’ equality thus encompasses what Nancy Fraser calls
‘transformative redistribution combined with transformative recognition’
(Fraser, 1995: 91): ‘Transformative’ equality would address the concerns
expressed by Nash, that we need a concept of equality that allows a woman
or man to claim they are discriminated against when they experience dis-
advantage through choosing to do something that is more typically associ-
ated with the other sex; but it would also address the issue of the economic,
social and political structures they need in order to be able to make those
choices.
Fortunately, CEDAW provides a flexible framework in which a variety of
different visions of equality can be accommodated; and which can be
appropriated by diverse groups of women in ways that best serve their
specific contexts. In the fifteen years since Bunch dismissed it as ‘toothless’,
106 Status, norms and institutions
its implementation mechanisms have been strengthened, and more women
have begun to use it as a reference point in struggles for their human rights at
national level (Landsberg-Lewis, 1998; Zwingel, forthcoming). It allows for
positive action measures to offset deeply embedded structural discrimin-
ation, and sets a standard of substantive, not merely formal, equality. It
encompasses economic, social and cultural rights, as well as civil and
political rights.
Though Nash, like Turner, is concerned with the social philosophy of
human rights, she is reluctant to anchor their moral appeal in anything out-
side her own biography. She concludes that ‘[t]hus those of us for whom
universal human rights are actually compelling can only trace the arguments,
situations, and political histories through which we have come to this pos-
ition; we will be able to find no ultimate justification for our belief and feel-
ings’ (Nash, 2002: 425). In this she is influenced by Rorty (1993), who argues
that there is no rational, extra-community point from which judgement can
be exercised. We may agree with this latter argument without concluding
that, therefore, we can only fall back on our individual biographies. Turner
(1993) argues for an anchor point, not in some rational extra-community
space, but in shared bodily and emotional experiences that are constitutive
of what it is to be human – though we find that even this is gendered.
This emphasis on human rights as rooted in what human beings share,
and in mutual recognition of our neediness, is important given the
undoubted priority that human rights give to individual autonomy. Nash
insists on the importance of individual autonomy because it enables fixed
gender identities to be continually contested; but she is concerned about the
charge that this is ethnocentric (Nash, 2002: 422). She resolves this
through a discussion of Uma Narayan’s critique of conceptualization of
culture as a unified totality, which, Narayan argues, is particularly prob-
lematic in relation to insubordinate groups within a culture (Narayan,
1997). Nash concludes that in the end it is impossible to avoid the
responsibility of making judgements about what is progressive and puts
forward the ideal of ‘deconstructive equality’ as the benchmark to guide
these judgements.
Walby argues persuasively that human rights are not necessarily indi-
vidualistic, in the sense of being in opposition to collective action, providing
examples where individual rights are claimed through individuals presenting
themselves as part of a group and taking collective action (Walby, 2002:
548). Individual autonomy does not have to imply disconnection from
others, from families and communities. Instead it can imply a reworking of
connection, so that instead of the connection being one of dependency it can
be one of mutuality (cf. Chapter 1). Individual autonomy does not mean
there are no legitimate constraints on individual behaviour. All human rights
are qualified by the obligation to respect the human rights of others.
Nor are individual rights necessarily in opposition to collective rights.
Collective rights always have to be exercised by persons. The questions
 ‘Women’s rights are human rights’ 107
are: who those persons are; through what process they come to have the
power to exercise those rights; and how accountable they are to the other
members of the collectivity. Individuals can have rights to a say in how
collective rights are exercised, and can have rights to use collective property
in stipulated ways. Individual rights should be distinguished from privatized
rights, which consist of rights to exclude others from the enjoyment of
something, and are exercised in the market through buying and selling for
commercial gain.
In some parts of the world women are engaged in a complex reconstruction
of the relation between individual rights and collective rights. An impor-
tant example is Mexico, where indigenous women are intervening in the
restructuring of rights taking place at federal, state and local level. This
restructuring is taking place both through amendments to the federal and
state constitutions (to some extent influenced by aspects of the human rights
system, especially the ILO Convention on the Rights of Indigenous People)
and through the reshaping of so-called ‘traditional’ customary law (usos y
costumbres), influenced by the new usos y costumbres introduced in the
Zapatista Autonomous Municipalities. Indigenous women have taken up
issues of domestic violence, forced marriage, equal participation in a wide
range of political arenas, rights to housing, education, jobs, medical care
and land rights (Hernandez Castillo, 1997; Gutierrez and Palomo, 2001).
Some Mexican researchers have described this as ‘indigenous feminism’,
which attempts to protect indigenous people’s rights and women’s rights
all at the same time, and which sees both as connected sets of individual
and collective rights (Hernandez Castillo, 1997; Sierra, 2003). Indigenous
women have been organizing to stake claims to use land for themselves
through the notion of collective indigenous rights (Stephen, 2003). There
is a national indigenous women’s network dedicated to getting women’s
rights enforced through processes of enlarging the autonomy of indigenous
communities. These women do not take their culture as static and univalent;
instead they strategize to reshape it. They do not see a dichotomy between
individual and collective rights. Instead they aim for a new synthesis.

The limitations of rights

There are some disadvantages to framing feminist struggles in terms of
rights, whether human rights or citizenship rights, especially if this results in
all gender politics being subsumed into a discourse of human rights (Stivens,
2000: 16). One disadvantage stems from the social limitations of legal dis-
courses and processes, which everywhere tend to serve the interests of the
powerful better than the interests of subordinated groups. Judges, lawyers
and juries tend to interpret and apply the law in male-biased ways (Kaufman
and Lindquist, 1995: 116). For instance, in cases of sexual assault and
sexual harassment of women, the victim rather than the perpetrator is often
the one who is judged and found ‘guilty’.
108 Status, norms and institutions
But the issue goes beyond the prejudices of those involved in applying the
law. Legal discourse is often premised on a false universalism. In the name of
impartiality and consistency, relevant differences are ignored. Judges in the
USA, for instance, for long argued that equal treatment in the workplace
precluded paid maternity leave, because only women would be eligible for
such benefits (Kaufman and Lindquist, 1995: 116). Moreover, rights are
necessarily formulated in ways abstract from particular circumstances and
the meanings attached to them. As Menon (1995: 371) points out, ‘the law
permitting or facilitating women’s access to abortion can also permit select-
ive abortion of female fetuses’. Whether this is a problem in practice depends
on the social context, especially the prevalence of preference for sons.
The abstract quality of law does, however, leave space for new interpret-
ations. For instance, the 1951 Geneva Convention on the right to asylum
does not include among the grounds for asylum fear of persecution on
grounds of gender, but it does include fear of persecution on the grounds of
being a member of a particular social group. In a recent case in Britain
concerning two women asylum seekers from Pakistan, the House of Lords
judged that they were entitled to asylum on grounds of belonging to the
social group ‘women in Pakistan’, because this group had well-grounded
fears of persecution if they were accused of adultery (Morris, 2002: 133).
It may be argued that claims for rights are not necessarily legal claims.
They can still make very good sense as moral claims, without necessarily
being translated into a precisely specified legal right which is the subject
of coercive legal rules. Sen (2005) argues that this was the sense in which
Mary Wollstonecraft, one of the pioneers in articulating women’s rights,
vindicated women’s claims to universal rights. However, some feminists
argue strongly against formulating moral reasoning in terms of rights.
Instead they argue that moral reasoning should be formulated in terms of
an ethics of care (e.g. Tronto, 1993). An ethics of care implies that morality
is founded in a sense of specific interpersonal connections; and an ability
not just to base concern for the plight of others on what one would feel if
one were in their place, but to see others as different in important ways
from ourselves, yet still extend to them an understanding of their needs and
interests (Robinson, 1998: 68).
This ethical foundation is in many ways similar to that invoked by Turner
(1993) as the foundation for human rights, but the important difference is
the compassion for those whom we see to be different from ourselves, as
well as those whom we see to be similar. This is a noble ideal, but at this
particular historical conjuncture there is an asymmetry of care. Social norms
currently construct women as the ones who give care, who are ‘naturally’
good at caring, whose duty is to care; whereas men are the ones who receive
care, who can legitimately demand care, who are not ‘naturally’ good at
caring. In this context, an undifferentiated ethics of care can perpetuate
women’s inequality and subordination, and encourage women to be com-
plicit in this perpetuation. An ethics of care has limitations, as well as an
 ‘Women’s rights are human rights’ 109
ethics of human rights. In my view we need both, in a mutually constitutive
dialogue, with an emphasis at the moment on women’s human rights and
men’s human care obligations.
A discourse that appeals to the moral legitimacy of the human rights of
women does not necessarily entail an emphasis on taking cases to national
courts and to UN human rights bodies. Instead it may lend the moral legit-
imacy of human rights to efforts to transform women’s sense of themselves,
and to transform cultural practices and understandings. Women in several
parts of Africa have understood this well in relation to the practice of the
cutting of female genitals as part of a rite of passage to adult womanhood.
While recognizing this as a violation of human rights, they have strategized
to reduce its prevalence through mediation and through building a new
consensus in communities, including the creation of alternative rites of
passage (Ibhawaoh, 1999).

Conclusions
Feminists who base their campaigns on the claim that ‘women’s rights are
human rights’ are generally well aware of the limitations of ‘actually exist-
ing’ human rights. They seek to transform human rights, as a concept, and
as a practice, while at the same time drawing on the moral force of human
rights.
There are continuities, and doubling backs, as well as breaks, in the
trajectory from a politics of small-scale autonomous feminist groups, to a
politics of engaging with state and inter-state institutions. Perhaps the most
important continuity is an insistence on breaking down the distinction
between public and private spheres of life; though there is also some continu-
ity of transformatory, anti-systemic politics. The engagement with human
rights, as distinct from citizenship rights, stems from an understanding of
the limitations, as well as the possibilities, of state action to end gender
inequality.
The politics of women’s human rights is certainly facilitated by the more
benign aspects of globalization, especially the diffusion of new communica-
tions technology. But it is also necessitated by the asymmetrical aspects of
globalization, which leaves many women with no recourse to citizenship
rights, and in a position whereby their access to rights is mediated by men.
Since human rights do not have a final and completely fixed meaning, they
can be understood in ways that are consistent with a post-structural femi-
nism committed to continual contestation and disruption, provided that the
latter also recognizes the importance of a commitment to equality. But in
the context of globalization, many women experience contestation and dis-
ruption as intensified insecurity, not expanded possibility. In this context, it
is important that human rights, as well as having a capacity for openness to
new meanings, are nevertheless grounded in an appreciation of the bodily
and moral frailty of human beings; and the importance of stabilizing the
110 Status, norms and institutions
right of all individual human beings to claim assistance from others, in a
mutually constituted and egalitarian system of interconnectedness.

Note
An earlier version of this chapter was presented at the Manchester Centre for Political
Theory, University of Manchester, at a conference in honour of Ursula Vogel, March
2005. Thanks are due to those present for helpful comments. Thanks are due to Kate
Nash and Sylvia Walby for alerting me to their innovatory contributions to the
sociology of rights; and to Lydia Morris for her editorial guidance.
6 Human rights, anti-racism
and EU advocacy coalitions
Carlo Ruzza

Efforts to clarify the mechanisms that further the diffusion and institutional-
ization of human rights have frequently concentrated on the role of norms in
the international arena. In connection to this issue, analysts have examined
how human rights have emerged as new transnational norms with a binding
impact on domestic regimes. However, the ways in which these norms
emerge, are connected to specific policies, and come to play a role, are
underspecified, as is the analysis of mechanisms operating in different types
of international arenas. This chapter examines the connection between the
concept of human rights as a global construct and anti-discrimination
policy, and more specifically the emergence and institutionalization of
anti-racist policy at the EU level. In this context, it elucidates some of
the mechanisms that favour the emergence and diffusion of norms in a
supranational setting: the EU.
The relevance of the EU as an expanding source of legislation in a growing
number of countries and policy areas is unquestioned, and it is therefore an
important setting in which to examine processes of norm diffusion. In add-
ition, as a setting that is broader than nation states but still connected to
them in clear and observable ways, the EU constitutes a good test case of
several types of interaction that take place between international and
domestic arenas. Examining specific forms of interaction between domestic
and international contexts also helps in clarifying the mechanisms that con-
nect the different levels of governance. Within the EU, anti-racist policy is a
relatively new policy area that is often connected to human rights.
In recent years, racism has again emerged as an important issue in the
political debate throughout Europe, raising a range of concerns and inter-
pretations. A set of new policy instruments has emerged. In particular, the
new article 13 of the Amsterdam Treaty legitimating EU-level action to
combat various forms of discrimination, including racial discrimination,
reflected the growing importance that this subject has acquired. Following
the approval of article 13, several related initiatives have also emerged in
recent years and were intentionally connected in legislative texts to the issue
of human rights. If anti-racism is defined in terms of human rights and
therefore constitutes an articulation of broad international norms, the
112 Status, norms and institutions
approval of anti-racist legislation then constitutes a good test case of
the mechanisms that connect broad principles and concrete policy decisions.
Studying the emergence and diffusion of transnational norms offers a
view of the sociological mechanisms that translate them into concrete and
enforceable operating standards.
In this chapter, I explore the operating modalities of the advocacy coali-
tion that has put anti-racism on the agenda, and also the reasons for both its
successes and its weaknesses. I argue that transforming a shared norm such
as the condemnation of racism into actual policy involves mediating among
contrasting policy frames, defining issues in such a way that a variety of
actors with contrasting interests and views can converge and focus their
efforts on a process of policy change. I examine the limitations to the
agenda-setting efforts of a complex coalition of Brussels-based activists and
bureaucrats, which has attempted to achieve a stronger policy response. I
explore its modes of operation and likely prospects, as well as examining
their promotional role and their responses to the initiatives already approved.
This examination allows the emerging policy process of anti-racism that
article 13 and two subsequent directives have jump-started to be put into
sociological context.
At the EU level anti-racism is characterised by a long history of declar-
ations of principle in which its character as a transnational norm and
definition as a human right has been enthusiastically supported and reiterated
by a range of political actors – notably in the European Parliament. How-
ever, concrete policy initiatives in this area were absent for at least twenty
years (Ford, 1992). This changed with the proposal and then the approval of
article 13, which emerged as the outcome of pressure exerted by a composite
advocacy coalition. It included a variety of institutional actors and networks
of non-governmental organizations (NGOs). Several public interest lobbies
and social movement organizations address the EU institutional context and
had a prominent role in advocacy activities in anti-racism and related
areas. They include organizations concerned with issues of anti-racism,
women’s issues and disability rights and movement-related groups, where a
range of political parties, NGOs, movements, organizations and churches
collaborate in representing the elderly, defending civil liberties, acting against
homelessness, or poverty, or on behalf of refugees, migrants and asylum
seekers. The role and number of these transnational organizations has grown
at the EU level, paralleling a growth of similar organizations in other
international arenas (Keck and Sikkink, 1998: 10).
While the support of non-state actors was important in representing
issues of human rights and the value of anti-racism in institutional con-
texts, without the support of EU-level institutional actors they would
not have been able to achieve policy change. It is therefore important to
differentiate between two processes. One is the importation of new ideas
in a policy environment, which in this case, and in other international con-
texts, is prominently affected by social movements and other conscience
 Human rights, anti-racism and EU advocacy coalitions 113
constituencies. A second one is the specific sociological dynamics that help
to translate principles into policy proposals. The first kind of process
presupposes the formation of a sufficiently coherent discursive frame. The
second kind relates to the variables that facilitate the seizing of political
opportunities by an advocacy coalition, which also involves acquiring
needed resources, mediating among conflicting interests, action repertoires
and operating procedures. The first type relates to cultural dynamics that are
influenced by interactions between movements and the media and take place
in an increasingly global arena. The second refers to policy events that, even
when they take place in international settings, are the outcomes of complex
processes of intermediation taking place within specific policy communities.
As the introduction to this volume points out, the second type of process
includes a variety of moderating influences on the impact of globalised con-
ceptions of human rights emerging at the global level, such as considerations
of national interest, considerations of political expediency of specific actors,
etc. The relation between the two is therefore complex and has often been
seen as problematic. I review these two processes separately.

Human rights, transnational principles and activist networks

The concept of human rights has received much recent scholarly attention,
including the study of the use and diffusion of the term, and the study of its
status in the social sciences and in social movements as embedding a new
systemic utopia in the wake of other overarching utopias, particularly in the
West (Woodiwiss, 2005: 79–91). Under the label of human rights, one finds
a few related issues. In international settings and for mobilization purposes
the language of human rights dates back to the inter-war period (Keck and
Sikkink, 1998: 81) and is often utilised with reference to movements for the
abolition of torture and the work of organizations such as Amnesty Inter-
national, but in more general terms it is also referred to in the work of
organizations focusing on race and gender issues. The debate on the role of
human rights at transnational or supranational level points to the need to
shift some of the analytical emphasis away from research on the nation state
to issues such as the impact of transnational activist networks and their
relation to global ideas circulating in international and supranational organ-
isations (Smith et al., 1997; Keck and Sikkink, 1998; Boli and Thomas,
1999; O’Brian et al., 2000).
Transnational networks have been studied in a large body of literature,
which has focused on the international impact of social movements (Willetts,
1982; Risse Kappen, 1995; Smith et al., 1997; Keck and Sikkink, 1998;
Risse et al., 1999). This literature stresses the impact of activist networks
that mobilise themselves to promote ‘global ideas’, the role of which has
been depicted by scholars in various ways. Soysal (1994: 43) gives as
examples the ideas of development (Ferguson, 1990), progress (Meyer,
1980) and freedom (Patterson, 1991), and adds the ‘world-level organising
114 Status, norms and institutions
concept’ of human rights. Each of these concepts has at various times been
entrenched in a social movement network.
At any point in time there exist a few distinct families of social movements
reflecting ideologies with varying degrees of coherence but with a central
core that characterises them as political doctrines (Freeden, 1996). Just as a
language may have several local dialects, so movements take different forms
in specific historical and local contexts, such as the EU and its member
states. They react to different sets of problems and are shaped by different
political contexts. In this respect ‘human rights’ come to constitute an ideol-
ogy that inspires the broad family of transnational activist coalitions
inspired by left-libertarian movements, but whose specific definition and
relevance have varied historically on the basis of a range of variables: the
viability of previously dominant ideologies, institutional considerations of
political opportunity etc.
The literature on transnational activist networks is often inspired by a
historical neo-institutionalist approach. Neo-institutionalists in particular,
who stress path-dependent approaches, point to the role of ideas in legitim-
ating policies and opening new policy paths, and on the time-dependent
mutual adaptations of ideas and interests in particular social groups.1
Summarising this field, and with particular reference to the international
relations literature,2 Checkel (1999) notes: ‘Scholars are asking how global
norms affect and constitute particular domestic agents, be they states, indi-
viduals or groups (NGOs, say). At issue, then, is how norms “out there” in
the international system get “down here” to the national arena and have
constitutive effects.’
The specific mechanisms that transfer ideas to the global level and then
diffuse them in specific settings are still unclear, and criticism of the neo-
institutionalist paradigm has focused on its inability to articulate mechan-
isms of diffusion (for discussions, see Risse Kappen, 1994; Finnemore and
Sikkink, 1998; Checkel, 1999). This is a topical issue, as it touches upon the
controversy as to the ever more flexible use of the concept of human rights to
justify policies that are radically different from the ethos promoted by the
left-libertarian family of movements that has emphasised the concept in
international arenas – one can think, for instance, about the debate on the
use of human rights to justify military interventions, and ‘exporting dem-
ocracy’ frames. In the rest of this chapter and with reference to the EU, I seek
to specify the mechanisms that constrain the range of uses that the concept
can take in specific environments.
The complexity and unpredictability of institutional dynamics invites
explanation at the institutional–organisational level. Applying these dynam-
ics in fields where movements play a major role, such as social policy, a
hypothesis of this chapter is that because some movements’ ideas now refer
to areas of generalised legitimacy, professional political actors, religious
leaders and business people will subscribe to them and even take their
importance for granted, while redefining them in terms consonant with
 Human rights, anti-racism and EU advocacy coalitions 115
their organisational/institutional cultures. In the language of sociological
neo-insitutionalism, mechanisms of coercion, mimesis and normative fac-
tors will orient the adoption and redefinition of transnational norms, such as
the definition of racism, as a violation of fundamental rights (DiMaggio and
Powell, 1991; Peters, 2000).

The global principle of anti-racism and its political sponsors

Racism has at various times been connected to a limitation of different
types of rights – in Marshallian terms racism has been seen as connected to a
diminution of all kinds of rights (Marshall and Bottomore, 1992). Its con-
nection to a diminution of legal rights have been documented in several
societies. In terms of political rights (vote, organize, form unions), racism
has been identified as acting as a filter in the concession of citizenship rights.
And in terms of social rights (right to welfare, education and health as
preconditions of political participation), it has been seen as a filter in the
operation of the welfare state. Given its broad relevance, different def-
initions of the problem and possible solutions are feasible when facing racism
as a policy issue. It is a problematic that, given its wide ambit of applicability
and potential ambiguity, leads itself to a ‘garbage can’ model of policy
approach (March and Olson, 1989). Actors match problems and solutions
on the basis of preferences and their availability.
Recent geopolitical events have only marginally restricted the versatility
of anti-racism – for instance, by emphasising its connection to migration
issues and urban policy. In recent years, geopolitical factors, such as increased
migration rates in several EU countries, regional economic recessions and
the process of European integration – which makes borders more permeable
– have made issues of all these kinds of rights newly relevant and salient in a
growing number of European states.
The right-wing reactive social movements and parties that have emerged
in several areas and the consequent attacks against racialized minorities
have placed the issue of regulation of ‘race’ on the agenda of several coun-
tries, particularly those of new migration where there is a vacuum in this
policy area. Anti-racist movements, which reject claims of a common enemy
and the idealization of the nation as a cohesive community, constituted
reservoirs of commitment on this issue and sources of policy proposals.
They therefore have a particularly important role in politicizing issues of
race, connecting them to the human rights discourse, giving them visibility
in a range of social institutions and rebutting growing negative stereotypes.
In addition to movements conceived as networks of people focused on
organizing protest events, anti-racism also derives its impact from its char-
acter of cultural current diffused throughout society, but particularly in
parties of the left, trade union movements and other left-libertarian social
movements.
A bloc of anti-racists has emerged in several EU countries. It grew out of
116 Status, norms and institutions
smaller migrant associations and turned into a counter-movement against
attacks. It is a movement that, in addition to protesting against institutional-
ised racism and the mistreatment of racial minorities and migrants, promotes
an ideal of tolerance and multiculturalism and is an independent voice in
public discussion of the nature of the new integrated Europe. Anti-racist
mobilizations exert their efforts in a variety of ways, in protest actions or
within institutional domains. I will refer to them broadly as ‘anti-racist
movements’, aware, however, that they employ widely different forms of
pressure, some disruptive, some not, but with a view to stressing an empir-
ical continuity of people and purposes.3 The nature of this movement is
difficult to define, as anti-racist protest events have occurred in a variety of
contexts, within a time frame that was not unified by clear geopolitical
episodes (such as the cruise missile crises or the Chernobyl incident, which
unified protest activities on a continental scale). It has therefore been a
movement with broad oscillations in participation.
What was new in the 1990s was that the migration-related prominence of
the issue created the perception of a crisis and the need for EU-wide policy
response. This spurred a search for new policy solutions. This perception of
crisis and search for solutions is reflected, for instance, in several policy
documents both at the EU level and in several member states. One possible
source of reflection on the issue comes from the anti-racism movement con-
ceived broadly as an advocacy coalition – a proposed solution opposite to
the ‘Fortress Europe’ model of an equally strong reactive coalition of
nationalist and ethno-nationalist movements and parties. The role of anti-
racist movement activists in redefining policy areas that are perceived as in a
state of crisis has been often documented in the literature (Alink et al.,
2001). Their effectiveness depends on a range of variables, such as the pres-
ence of a coherent alternative set of policy proposals, and more generally of
definitions of the situations, of causes of problems and possible solutions.
However, anti-racism is a movement frequently described as being in a
state of crisis and self-doubt (Bonnett, 2000). At the ideological level, some
have argued that anti-racism should be a set of dimensions of the multi-
farious and changing identity of various ethnic groups, connected to their
religious and cultural identities. Others have privileged a cohesive political
identity whereby the anti-racist struggle takes place in association with, or is
even superordinate to, class and gender conflict. A further division has often
emerged between minorities and ‘white’ anti-racist activists, with some argu-
ing that anti-racists should let minorities speak for themselves and others
advocating a broader and more inclusive movement; that is, a movement
of people from different backgrounds who face issues of racism in their
everyday working and social lives, such as educationalists and other profes-
sionals. There are also those who see education of the public at large as
the main goal of anti-racism, and they are criticized for only concerning
themselves with the white majority. This split is connected with a contested
identification of the source of racism, with some focusing on individual
 Human rights, anti-racism and EU advocacy coalitions 117
dispositions and others on institutional procedures (Ben-Tovim, 1997: 219).
In institutional settings, particularly in UK schools and local authorities, but
also among social workers, probation officers and social security officials,
there has been a difference concerning what should be at the focus of atten-
tion: racism or multiculturalism. Externally to the movement, there have
been attacks by the popular press on the ideology of anti-racism, which has
been associated with the traditional left and with what the press has
regarded as a culture of intolerance within the movement (Gilroy, 1990).
None the less, as with other social movement frames such as ‘gender
equality’ or ‘environmental sustainability’, ‘anti-racism’ has gained from its
growing role of approved societal concern – a transnational norm – that
stimulates discursive institutional compliance. Combating racism is trad-
itionally a defining characteristic of the left and has in recent years received
attention in the media and mainstream politics as a reaction to substantial
advances of the extreme right in several EU countries.
Movement and political party activists working against racism are aware
of this broad anti-racist ethos, and attempt to turn what they perceive as a
universally approved declaration of principles into specific cultural and pol-
icy responses. However, this can result in limited and even contradictory
institutional initiatives. It is therefore in a context of uncertainty that anti-
racism policy had to develop at the European level. The status of approved
general principle and the concern for the growing number of racist attacks
made an EU proactive approach necessary, but did not clarify in which
direction to intervene: whether, for instance, to focus on economic activities,
on institutional domains, on dispensing resources to victims and potential
victims, on educational initiatives. This is in addition to decisions on the
modes of intervention. As previously mentioned, in case of interventions a
decision had to be taken on which identities had to be recognised: whether
to reinforce self-esteem, to promote group identities or a unified ‘black’
consciousness.

Anti-racism and the EU

Given a substantial uncertainty on how to approach the issue, the first impor-
tant intervention in the area was clearly oriented by existing transnational
norms as formulated by relevant international conventions. European anti-
racism policy reiterates principles already present in the 1950 Council of
Europe Convention for the Protection of Human Rights and Fundamental
Freedoms and in the 1966 United Nations ‘International Covenant on
Economic, Social And Cultural Rights. Article 13 was approved after
unanimous agreement of member states of the Amsterdam Treaty of 1997,
which entered into force in 1999. Noting that the European Union ‘is
founded on the principles of liberty, democracy, respect for human rights
and fundamental freedoms’, it establishes the rights of individuals not to be
discriminated against on several grounds, which include race and ethnic
118 Status, norms and institutions
origin, age, disability, religion and sexual orientation. It complements
measures to outlaw gender and nationality discrimination, which have long
been covered by the treaties. And it is part of a concern with the principle of
non-discrimination for racial and ethnic reasons, which had already fre-
quently appeared and would then be reiterated by key EU legal texts. It is,
for instance, the subject of article 37 of the Charter of Fundamental Rights,
and non-discrimination on the basis of race and ethnic origin, which are
listed in article 21 (European Parliament, 2000).
Following from the new legal authority conferred by article 13, two dir-
ectives were passed in 2000. As directives, they had to be transposed into
national legislation within a set period if no extensions were requested. The
first directive, known as the Racial Equality Directive (2000/43/EC), focuses
on preventing discrimination on the grounds of race and ethnic origin. The
second, known as the Employment Framework Directive (2000/78/EC),
focuses on religion, sexual orientation and disability.4 The directives define
the basis for ensuring a common minimum level of legal protection against
discrimination. As the date for transposition was the end of 2003, infringe-
ment procedures have now been launched by the European Court of Justice
against some of the states that have not complied, and a ruling was passed
for countries such as Austria (Ruling of 4 May 2005, Infringement Procedure
IP 05/543) and Germany (Ruling of 28 April 2005, Infringement Procedure
IP 05/502). In addition, a Community Action Programme was established
to combat discrimination (2001–6), which includes funds for cultural and
educational initiatives and also focuses at the local level.
As can be seen from this brief review of initiatives, article 13 marked a
change of direction in approaches to racism. In historical terms the approval
of article 13 and subsequent developments were first made possible by a set
of historical events. Article 13 was approved after there was a change of
government in the UK, which had been vetoing legislation in the area for
several years. The two ‘racial’ directives were made possible by the con-
certed reaction of all EU governments to the Haider presence in government
in Austria (Ruzza, 2004). Observers have noted that the rapid approval of
the two directives marked a need to stress the importance of human rights
when they appeared threatened by the presence of a right-wing extremist in
government but also came at a time when a show of European unity
appeared essential in a period of declining legitimacy of the EU integration
process. Some initial answers on how transnational norms are implemented
can now be identified. EU-level anti-discriminatory legislation is the result of
a wide set of variables, but factors that resonate with general institutional
goals of legitimacy and institutional identity play a role.
In addition to the general historical factors just mentioned, one has to
investigate the workings of the Brussels institutional environments, as suc-
cessful legislation ultimately depends upon them. The implementation of
transnational norms in specific measures can be facilitated by historical
dynamics but has to pass through EU institutions. In order to understand
 Human rights, anti-racism and EU advocacy coalitions 119
how a general human right such as the right of non-discrimination on racial
grounds comes to be translated by specific actors into strategies, and the
following complex interactions in policy outcomes, one has to investigate
their typical goals, operating procedures and taken-for-granted assump-
tions. Here only the role of the major institutions can be reviewed. With the
exception of the Council, which expresses member states’ positions and
whose influence can be subsumed in the above mentioned historical factors,
anti-racism was prominently supported by advocates in the EU Parliament
and in the Commission, and by the advocacy efforts of organised civil
society.
This review of the role of different actors in anti-racist policy is based on a
set of over fifty in-depth interviews conducted at different times over the
decade 1995–2005. Reference will also be made to a structured text analysis
of policy documents produced by the different types of actors and analysed
in 2003 (for a description of the methodology see Ruzza, 2006).

The EU anti-racist movement advocacy coalition

In Brussels the anti-racist advocacy coalition has strong personal and insti-
tutional contacts with a range of other movements concerned with social
exclusion. There are a variety of organisations with different tasks and
philosophies lobbying EU institutions for legislation and funds. There are a
few large and loosely organised networks that encompass a variety of social
exclusion causes, such as the Social Platform, Solidar, the Youth Forum
(EYF), the European Federation for Intercultural Learning, the European
Human Rights Foundation and religious organisations. Solidar, for instance,
coordinates social welfare and aid activities on an EU level, and in 1997
engaged in a prominent campaign against racism. The Social Platform
coordinates about 25 umbrella organisations, each of which represents a
number of organisations ranging from a few to several hundreds and whose
focus varies, with some interested in disability rights issues, others in ageism
and still others in racism. All these organisations have good contacts with
EU institutions, and at the same time support protest activities of some of
their activist member organisations and the service and welfare activities of
other members.
If anti-racism is embedded in other movements, it is also a distinct social
movement area with a separate identity and a variety of loosely collaborat-
ing organisations directly connected, even if represented in other networks.
While some organisations have stressed their anti-racist concerns, particu-
larly at key points in time, such as in 1997, which was declared the European
Year against Racism, there are organisations for whom anti-racism is the
main concern or a dominant one. The most prominent are the European
Migrants’ Forum, Starting Line (no longer in operation), the Anti-Poverty
Lobby, and then to a lesser extent the Youth Forum and the Women’s Lobby.
Taken together they express in EU institutions the concerns of a broad
120 Status, norms and institutions
European movement of several hundred organisations and unaffiliated
individuals. Its Brussels representation, as in the case of the environmental
movements, excludes the more radical, small and institutionally peripheral
groups, but includes a wide variety of concerns, philosophical positions
and strategic orientations. Since 1998 a specific anti-racist network (the
European Network against Racism, ENAR) has been active, even if frag-
mentation of the field persists and worries activists. As previously mentioned
with general reference to European societies, ideological fragmentation also
induces self-doubts and policy uncertainty in the EU-level environment.
The pro-inclusion left-liberal organisations of organised civil society con-
stitute a very broad movement family with only limited internal ideological
cohesion. Each branch of the family can attach anti-racism to its main griev-
ances and reinterpret it as one of its competencies, but often not the main
one. Gender and class issues, poverty, migration, human rights as protection
from torture, labour disputes and so on, are all seen as affected by racism,
and all concerned sectors of movements spend time and energy on anti-
racism. They also claim resources and would like to prioritise their field. If
this is an advantage for the anti-racist movement because it makes it globally
relevant, it is also a disadvantage because the specific constituency of victims
of racism is often too weak to claim its own discursive space. The issue is
‘tagged on’ to the other movements that claim it. This is making it more
difficult for anti-racists to maintain relevance.

Political and administrative environments

EU institutions have played a generalised facilitating role in the establish-
ment of anti-racist movements in Brussels and then of anti-racist policy.
There are both common and separate reasons for the involvement of the two
main institutions in this field: the Parliament and the Commission. For both
bodies, the role of social movements is important as a consequence of the
perceived need for democratic legitimacy of the ‘European Project’. This
point emerges clearly from interviews with Commission officials, who often
refer to ‘the European value added of their operations’5 in the anti-racism
field, and from interviews with activists, who feel they are valued as a way
of reaching out for an otherwise isolated bureaucracy or for MEPs who
often feel less relevant and connected to their constituency than MPs.
Consultation with civil society is now a formalised policy area and there
is a particular focus on connecting the EU with under-represented constitu-
encies and with local and regional levels of government (Ruzza, 2002).
As a consequence of these institutional needs to ‘reach out’, a great
amount of European resources for the area is spent connecting national
and local organisations of member states, and promoting pan-European
knowledge in the field, such as through the Raxen initiatives, which include
studies and examples of good practice in the field, and other projects con-
nected to the work of the European Monitoring Centre against Racism
 Human rights, anti-racism and EU advocacy coalitions 121
(EUMC). This agency was specifically developed to monitor the issue of
racism. Recently the mandate of the EUMC has been extended by its conver-
sion into a ‘fundamental rights agency’, emphasising the connection between
racism and human rights.
Thus, specific institutional goals of the entire institutional apparatus
of the EU filter transnational norms defining ambits of attention and
resource allocation. This filtering process also takes place within individual
institutions.

The European Parliament

The European Parliament is traditionally high-minded in terms of principles,
possibly because it lacks the powers to set agendas and to monitor the
implementation of resolutions, but it also has a high absenteeism rate and
not infrequently an accumulation of tasks at national and EU levels that
force a strict selection of interests. Consequently, over the years a core
of institutional activist MEPs with a specific interest in anti-racism has
emerged, an interest that, for some, has lasted several years and has involved
participation in a committee that reported on racism in 1986 and in 1991, as
well as continuing commitment. They often work on anti-racist issues, both
at the national and at the EU levels, where much anti-racist policy work is
concentrated in the civil liberties committee and the anti-racist working
group. As one MEP noted, the Parliament played a fundamental role in the
successful approval of article 13 and successive legislation. Anti-racist
parliamentarians have excellent and frequent contacts with the anti-racist
organisations in Brussels. MEPs often take the initiative in contacting
movements’ representatives when they have to be rapporteurs on issues for
which they need information. They establish contacts directly, or through
their assistants, or often through the Commission’s list of contacts.
If, as mentioned, a variable that explains the Parliament’s involvement in
the area is its desire to acquire institutional relevance, one cannot ignore the
impact of cultural factors. In mediating transnational norms of anti-racism,
parliamentarians also act on the basis of their personal background, which
in the formations of the left is often one of previous involvement in the
anti-racism movement.

The Commission
The Commission has been concerned with racism for a long time. This is to
be expected, as the Commission has a tradition of identifying under-
thematised policy areas in which a European dimension can appear useful
and relevant. As Majone (1996) points out, regulatory decisions are often
related to societal values, hence policy-makers have a vested interest in the
cultural milieu. It is therefore to be expected that this interest grew when the
issue became socially more relevant. This is particularly the case for the top
122 Status, norms and institutions
tiers of the Commission, which typically act in a political function. The need
for legitimacy is, however, as in the case of Parliament, not the only reason
for supporting anti-racism. There are also broader generational and ideo-
logical factors at play behind the close connection between EU institutions
and NGOs. One activist said: ‘Activists very often have links that go back to
the sixties and the seventies with the people in government. I was able to tell
a Commissioner that he was a founder member of one of our organizations.
Especially now that there is a social democratic majority in the EU, many
ministers were supporters of NGOs.’ In addition to these general reasons for
involvement there are also specific ones that pertain to the bureaucratic
function of operative units in the area.
The main bureaucratic referent for anti-racism is a unit of Directorate-
General (DG) Social Affairs, which as a whole deals with the free movement
of workers – essentially a legal activity (revision of free movement legisla-
tion, action on complaints of infringement against member states, etc.). The
unit also deals with the social integration of immigrants, employment pro-
grammes of recognised refugees and action against racism. So the latter is
only one of the areas of concern. Activists described the last head of unit as
very committed – a ‘super-converted’ – and valued her political sense, her
ability to be realistic and effective in her demands, and achieve results.
The unit was created in 1958. It deals with matters, such as free move-
ment of labour, already included in the Treaty of Rome. Integration of
immigrants and refugees came later. Anti-racist policy was added in 1986.
The relevance of anti-racism work varies according to the tasks at hand,
ranging from a handful of people working in the sector to over twenty in
periods of special initiatives such as during the 1997 European Year against
Racism. Unfortunately, as this head of unit pointed out, mobility is very high
in DG Social Affairs and is encouraged by the hierarchy, but she points out
that racism is a very special field; if a position is posted, only personally
committed people tend to apply. There are therefore in operation dynamics
of selection that ensure continued bureaucratic commitment.
The anti-racist work done by units other than DG Social Affairs is not
dissimilar in being fairly activist in orientation. The ideological orientation
is, as with DG Social Affairs, sustained by a belief in the promotion of
Europe, not only for providing legitimacy to EU bodies, but for broader
reasons as well. Some activists say that there is in the Commission a funda-
mental belief that the European model has been an effective social model for
many years. It has provided security from wars and affluence, and there is a
desire to promote it as a philosophy not just within the EU but outside as
well. Hence voluntary organisations such as youth organisations and their
activists’ concerns are funded in places as distant as Georgia or the Maghreb
area. The Commission needs to know about society, and voluntary organ-
isations can provide space for reciprocal knowledge, ranging from activists
and volunteers brought to Brussels for consultations and represented in
Brussels, to EYF (European Youth Forum) staging Youth in Parliament
 Human rights, anti-racism and EU advocacy coalitions 123
events (where 500 young people are brought to Brussels for a two- to
three-day debate on their living conditions, with the participation of EU
bodies’ representatives).
The division between an assimilationist and a multiculturalist approach
that characterises European anti-racism finds an echo in Brussels. This con-
tradiction hinders the anti-racist community’s progress towards identifying
shared goals, such as agreement on how best to spend money, where to
concentrate efforts and which groups to support. However, according to
some activists, the dominant institutional ethos is an assimilationist one,
which seems to emerge in interviews with civil servants. For instance, a
civil servant stressed that all steps should be taken actively to encourage
migrants’ access to ‘majority’ culture, but awareness of migrants’ cultural
diversity was never expressly mentioned. Much emphasis is placed on, and
funds are spent promoting, ‘minority’ integration. Policy provisions to
promote minority cultures and safeguard religious rights are more limited.
The two approaches are not easily combined, as they imply different allo-
cation of resources, but their contrast is even more of a problem for the unity
of the movement at large. From their small units in Brussels, institutional
actors can espouse a policy of channelling as much in the way of resources as
possible to a wide variety of organisations, which might have contrasting
approaches. At the same time, in terms of institutional discourse, regulators
often prefer to frame anti-racism in terms that are compatible with the
broader ethos of the European project. This is based on a neo-liberal ethos
within which anti-racism is better conceptualised not as an issue of distribut-
ing resources to disadvantaged groups in general or in terms of legislating
in order to combat neo-Nazi attacks against migrants. Instead, it will
more typically be seen as an issue of right of access to the markets that the
EU has been built to enhance and monitor – markets of goods, labour and
services. In this perspective racism mainly limits individuals as consumers
and workers.
Anti-racism is in fact more congruent with the broader EU ethos when
defined with reference to the role of the individual in the labour markets,
and in social institutions. In this sense, anti-racism is typically seen in terms
of a threat to rights. A brief excerpt from a Commission website encapsu-
lates the way in which anti-racism and more generally the struggle against
discrimination is conceptualised in Brussels:

Employment and occupation are key elements in guaranteeing equal

opportunities for all. They contribute strongly to the full participation
of citizens in economic, cultural and social life, and to realising their
potential. For nearly 50 years, the European Member States have
worked towards achieving a high level of employment and social protec-
tion, increased standards in living and quality of life, economic and
social cohesion and solidarity. They have also endeavoured to create an
area of freedom, security and justice. Discrimination can seriously
124 Status, norms and institutions
undermine these achievements, and damage social integration in the
labour force and at large.6

In other words, discrimination is particularly negative for its impact on

economic well-being and social integration. As a value compatible with the
overall EU ethos, anti-racism also has a unified function and comes to
be defined as a horizontal policy: a policy concern that regulators have to
keep in consideration within all the other policy areas and that unifies the
Brussels-shared pursuit of an integrated Europe. Thus the transnational
norm of anti-racism becomes filtered by a global organisational ethos and
comes to be employed as a contributor to the set of interconnected goals that
characterise the EU.

Inter-organisational relations
This chapter has so far identified a set of personal and institutional concerns
of bureaucratic, political and civil society actors and argued that they are all
served by emerging conceptions of anti-racism and its connection to funda-
mental rights. The interconnection and compatibility between the discourse
of different institutional environments needs, however, to be qualified.
One has to address the issue of the extent of interconnection between
different actors.
It is not generally denied that there is a strict connection between dif-
ferent organisational environments. Their strict involvement in EU decision-
making is not accidental. As Peters (1992) has pointed out, the EU has
traditionally used strategies of bureaucratisation and fragmentation of nego-
tiations in order to diffuse conflicts and ‘technicise’ them. This creates an
integrated inter-organisational environment in which cohesion is valued and
is rooted in constant negotiations and the necessity to agree in the absence of
strong majoritarian decision-making rules. Support to principled positions
is one of the cohesion-enhancing mechanisms. Principles such as anti-
racism, but also environmental sustainability or gender rights, are frequently
recruited to its services.
These principles come to be reiterated in informal consultations and
sometimes uneasily conjugated with the neo-liberal values of competitive-
ness, efficiency and technical appropriateness, and have contributed to
determining a cohesive decision-making structure. Thus the informal pro-
cess of coordination among different political and non-political actors takes
place from the beginning of the decision-making process, a style of work
that has characterised the EU from its inception and was explicitly intended
by the Commission. In brief, we can identify a few interacting organisa-
tional environments that are unified by their participation in a structured
competition where compromise is necessary and in which facilitating factors
are bureaucratic procedures, some shared goals and some taken-for-granted
norms.
 Human rights, anti-racism and EU advocacy coalitions 125
Despite their similarity, the different environments also operate according
to distinctive operating procedures, which, for instance, sociological neo-
institutionalists have usefully reduced to ideal types (Powell and DiMaggio,
1991). They are bureaucratic environments such as the Commission, polit-
ical environments such as the Parliament, the sector of business lobbying
and public pressure groups and social movements. In bureaucratic environ-
ments, transnational norms such as anti-racism are conceived as taken-
for-granted. They refer to procedures that need to be followed in a relatively
automatic fashion. In activist environments they are the subject of norma-
tive commitment and refer to moralised behaviours. In lobbying and some
organised civil society environments anti-racism indicates areas where insti-
tutional compliance is required to ensure resources or access, and compli-
ance emerges in a mimetic fashion. None the less, despite differences,
altogether the resulting organisational environment is generally integrated
and supportive of anti-racism, even if individual actors might not identify
with it. At the EU level, social movements operate in the absence of the
relatively homogeneous structures of the nation state and therefore often
face a less oppositional and concerted institutional reaction. The historical
form of the social movement that has emerged as a political challenger to the
state tends to take a different role in the fragmented EU environment (Marks
and McAdam, 1996).
These considerations point to the fact that the relationships among the
different organisational environments involved in EU decision-making are
not generally based on controversial stances. Instead, the inspiring principle
is a willingness to compromise in order to accommodate different interests.
Clearly, for negotiation to reach a compromise, interaction is often difficult
and protracted and occasionally engenders factious disputes. But in these
exchanges a cohesive value orientation is formed, where distinctive values,
information-processing mechanisms and goals emerge and bind a com-
munity of specialists. In the anti-racism field, technical competence might be
somewhat less important than in other fields, but is often supplemented by
the stronger value commitment that all the interviews have documented.
This institutional commitment, then, also has a personal dimension. For
instance, an activist pointed out: ‘The institutions with a mandate on racism
collaborate closely. In particular, the relevant sections of the Commission,
particularly DG Social Affairs and the European Parliament, particularly the
Committee on Civil Liberties, collaborate closely. The head of the relevant
unit and some staff go to most of the meetings of this committee, and there
are frequent personal contacts.’ Relations with movement representatives
and NGOs are also frequent, and are emphasised within key legal docu-
ments such as the first action plan against racism. The importance of
dialogue with institutions is also emphasised by the anti-racist movement, as
it emerges in in-depth interviews with all actors. They essentially share views
on priorities, and just as it is for anti-racism, this is also the case for other
areas of concern for social movements (Ruzza, 2006).
126 Status, norms and institutions
A content analysis of policy documents and presentation websites shows
that EU institutions and the anti-racist coalition view the main priorities
similarly, as: the necessity to concentrate on issues such as improving the
implementation of anti-racist legislation in member states, enhancing par-
ticipation, particularly participation of actors from civil society, emphasis-
ing the importance of human rights and related policy principles, and
improving knowledge in the field.
This said, important differences also exist between EU institutions and
anti-racist movements, which, however, could indicate that anti-racism as a
policy effort is not an area captured by vested interests, and in normative
terms does not simply reiterate institutional views – organised civil society
can play an independent role (Ruzza, 2006). In differing from movement
texts, EU texts emphasise the connection between anti-racism and their
institutionalised policy concerns. They emphasise the necessity to main-
stream anti-racism in all the EU policy areas and the European dimension of
the issue, and put less emphasis than anti-racist documents on the role of
member states.
The differences between anti-racist groups and EU institutions is none the
less mainly a difference of emphasis. The existence of a fairly integrated and
proactive anti-racist coalition that crosses different institutional environ-
ments is evident. Thus, even when conceiving the EU as a complex and
interconnected organisational environment, we can link specific inter-
organisational dynamics and general principles of human rights. Anti-racism
allows different kinds of actors to interact through a common language. It
allows the EU machinery as a whole to project an external image of concern
for topical issues that go beyond the often vilified concern for economic
prosperity. Article 13 and the subsequent legislation connect the Union to
shared social values.
These considerations make activists accepting of EU involvement but
also somewhat cynical. Their attitude varies from disenchanted scepticism
to belief in the personal commitment of institutional actors. Noting the
reiteration in EU bodies of anti-racist concerns, one activist said: ‘Regulation
of racism is a matter of fashion. Everybody says they are concerned about
racism. You had the Council of Europe’s campaign, “All different all equal”,
then the following year was the European Year against Racism. Now you
hear much more about it on television and the radio. In the newspapers
it has become a fashion. You have to be anti-racist. It is something in
the wind.’

Conclusions
In this chapter, the argument has been put forward that the institutionalisa-
tion of human rights principles depends on the extent to which emerging
global ideas about connected key aspects of social organisation, such as the
theme of ethnic discrimination and the fight against racism, are interpreted
 Human rights, anti-racism and EU advocacy coalitions 127
through the narrative of the extension of rights and then redefined to serve
political purposes and justify the involvement of different classes of actors,
including social movements and organised civil society. Successful anti-
racism policy depends on several variables – one is the political legitimacy
that transnational NGOs are able to acquire, which is in turn related to their
ability to appear politically responsible defenders of universally supported
ideas and therefore able to allay the fears that their presence constitutes a
threat to the sovereignty of nation states (Hudson, 2001). This objective has
yet to be reached, and recently increasing preoccupations with security
have hindered EU-level anti-racism. None the less, with the involvement of
anti-racism movements in deliberative forums and the approval of new legis-
lation, important steps have been taken in this direction. This chapter exam-
ines the various reasons for this partial success, pointing in particular to the
need for political legitimacy of the supranational arena.
At the EU level, supporting legitimate universal principles contributes
to the legitimacy of the overall European project. In addition, connecting
anti-racism to neo-liberal values by relating specific legislation to the detri-
mental impact racism has on a well-functioning labour market improves
the ‘fit’ (Keck and Sikkink, 1998: 3) between universal principles and
the EU principles that characterise the process of European construction.
This further contributes to facilitating the mainstreaming of anti-racism in
European-level policies. When successful, human rights related ideas turn
into taken-for-granted assumptions whose precise nature and actualisation
may remain controversial and subject to advocacy pressure, but that are no
longer simply a matter of individual normative choice.
Participation in anti-racism policy is therefore fruitful at least in terms
of promoting a democratisation of the EU in terms of the expansion of
issue areas and range of actors involved (Dryzek, 1996: 5–6), but there
are costs associated to it. These relate to a forced definition of priorities
that, while enhancing the ‘fit’ with EU values and thus ensuring the
involvement of institutional actors, to an extent constrains the movements’
choices and distorts their objectives. As the debate on the underclass has
shown, there has been a growth of policies stressing social obligations above
social rights (see Chapter 4), and it is in this context that anti-racism finds
a role as an enabling factor in access to labour markets and connected
spheres.
However, on balance participation has proven useful, as objectives are
still unclear even within the movement, while resources are generally needed
for several activities on which all the movements’ viewpoints could con-
verge. In this respect, as theorists of deliberative democracy argue, deliber-
ation has a positive aggregative function for those engaged in it. In this
sense, the movement’s thematic fragmentation can be helped through its
EU-induced necessity to form EU-wide representative networks and to
engage in deliberative activities. Finally, another reason for valuing anti-
racism advocacy is that due to the impact of globalisation and the hollowing
128 Status, norms and institutions
out of the state, control over a growing range of issues has moved to the
international arena and is increasingly associated with civil society (Dryzek,
2000: 5). For this reason, it is important for anti-racism to be represented by
movements and to face directly other private and public interests.

Notes
1 For a discussion of different approaches within neo-institutionalism, see Peters
(2000).
2 For a review of the international relations literature on the role of global ideas and
more generally ‘knowledge approaches’, see Hasenclever et al. (1997).
3 There is a debate in the literature on the distinction between social movements
and public pressure lobbies. Some authors believe they should be differentiated,
others do not. Empirically, and as I will show, in the anti-racist field they are often
connected. With reference to the EU-level anti-racist movement, the distinction
is not useful and I will refer to mixed formations as ‘movement advocacy coali-
tions’ to indicate both their mixed character and the simultaneous engagement in
advocacy activities and protest events.
4 The Racial Equality Directive shields against discrimination in employment and
training, education, social security, health care, housing and other services, mem-
bership and involvement in organisations of workers and employers. The
Employment Equality Directive focuses on equal treatment in employment and
training irrespective of religion, disability, age or sexual orientation in employ-
ment, training and membership and involvement in organisations of workers and
employers. It also requires employers to make reasonable accommodation to
enable qualified disabled people to participate in training or paid labour.
5 Civil servants in considering all policies are obliged to take into account what has
been called ‘the European value added’; that is, they have to consider whether
policies have a positive impact in furthering the process of European integration.
6 http://europa.eu.int/comm/employment_social/fundamental_rights/index_en.htm
Part III

Meaning, interpretation
and rights

Elson’s chapter from Part II comes close to the interpretive approaches

represented in Part III of this book. Interpretivism is broadly speaking about
understanding rights from the inside; from inside choices, sentiments,
processes, relationships and cultures. In Chapter 7 the focus is on an integra-
tion of social theory and political philosophy, based on the argument that
the latter requires a rooting in specific social relations, and, conversely,
that social theory would benefit from sustained engagement with moral
philosophy. In particular, Stones uses the example of ‘duality’ as featured in
structuration theory and its application in a socio-moral philosophy, to yield
an interpretation of moral dilemmas in their social and cultural context.
There is no presumption that this choice represents the only or the ‘best’
example of the integrated approach he advocates, but it is offered as one
route into his three chosen examples. The broad intention is to illustrate the
development of an ‘internal critique’ based on empirical exploration of the
normative rules, injunctions and sanctions at play in a given situation,
against which selected aspects of abstract political philosophy may then
be read, with a view to identifying their currency and phenomenological
relevance.
Three case studies have been chosen, as a means of examining the issue of
individual autonomy and the socially embedded functioning of rights. The
cases deal with sexual freedom for gays in Britain (Dworkin, 1978), the
Indian tradition of sati (Parekh, 2000) and the choices of Thai sex workers
(Aoyama, 2005). In each case, we are presented with a context-sensitive
account of the rights at issue, examining the ways in which their operation is
inevitably embedded within social relations, institutions and cultural tradi-
tions. Attention is paid to expressions of morality other than ‘rights’, such as
religion, communal solidarity or culturally specific conceptions of virtue,
and the philosophical underpinnings of a liberal rights tradition are tested
against the degree to which they are valued by different people in different
contexts. This exercise offers a new perspective on old oppositions, such as
universalism and particularism, or liberalism and communitarianism, and
potentially frees the liberal approach to rights from its more judgemental
tendencies. The aim is to trace the connections between individual
130 Meaning, interpretation and rights
narratives, their location in an external structure of relationships and the
normative context of values and sanctions within which they operate to
yield a commentary on their conditions of action. This, in turn, can aid the
understanding and adjudication of conflicting rights claims, either within or
between cultures, as elaborated in the case study analyses.
Chapter 8 also adopts an interpretivist position, this time offering an
inside perspective on a movement: the case of gay rights, an area of rights
that scarcely existed at all as little as 50 years ago. The opening argument of
this chapter is that, far from being ‘given in nature’, rights come out of
struggles and have their origins in political and moral ‘talk’. This ‘talk’ is the
substance of activist work by the moral crusaders and entrepreneurs who
engage in claims and counter-claims, animated by contesting interpretations,
rationalisations and definitions of rights. Their movement is aimed at con-
vincing particular audiences of their legitimacy, and overcoming competi-
tion and conflict from those with other views. Sexuality is a relatively new
terrain for conceptions of rights and Plummer sketches the stages this emer-
gent area of rights has passed through – invisibility, decriminalisation, toler-
ation – on the path to recognition and eventual institutionalisation. These
transitions of course raise some of the status issues discussed in Part II, but
the emphasis in the present chapter is rather on the interactionist dynamic of
rights claims, the gradual shift in perceptions and values, and the way the
contested claims of the gay movement have inspired broader notions of
sexual citizenship and intimate citizenship. These have now become central
areas of concern for many different groups and organisations.
The narrative of the chapter is the emergence of a public homosexual
identity, reclaimed from criminalisation, medicalisation and demonisation.
The moral debate that ensued, however, was characterised by gay claims to
liberty in the realm of personal morality, which ironically threatened to
drive them back into invisibility. A full rights agenda had yet to emerge, and
a discourse of visibility and pride was central to the development of a Gay
Liberation Front. Plummer identifies this as a moment of division between
an ‘assimilationist’ position and a more confrontational stand. It was the
tragedy of HIV/AIDS that led to a true institutionalisation, and to the latest
galvanisation of the movement. These shifts in meanings, perceptions and
identities are the key to a social interaction approach, and Plummer traces
further developments: the global advances and attacks on sexual rights,
the emergence of broader claims to intimate citizenship and the anti-
normalisation embraced by the queer movement. Indeed, the message of the
chapter is best summarised as creativity through contestation, or identity
through interaction.
Chapter 9 addresses the issue of indigenous rights, beginning with a
consideration of Europe’s colonial expansion and ideological domination,
and moving on to outline the inadequacy of most sociological treatments
of these matters. The interpretive core of the argument comes from a
consideration of the experience, perspective and culture of the indigenous
 Meaning, interpretation and rights 131
peoples themselves, and their contestation of the world view of their oppres-
sors. This latter included an assumption of cultural inferiority that was cen-
tral to the assumed legitimacy of colonial occupations. A variety of devices
were used to translate such occupation into a legally defensible position,
from agreements between sovereign entities (often violated) to the doctrine
of terra nullius, which deemed territories inhabited by indigenous people to
be open wilderness. In the process, little credence or even attention was
given to indigenous law or concepts of rights, and only since the Second
World War has there been any serious international debate. Among recent
concerns is the very question of how to define indigeneity itself – and the
answer seems largely to turn on cultural continuity and distinctiveness.
However, the chapter documents the often appalling conditions under
which indigenous people struggle to maintain their beliefs and ways of life,
and finds that sociology has traditionally had little purchase on indigenous
issues. Constrained by its focus on ‘modernity’, and often by an implicit
evolutionary perspective, classical sociology has treated indigenous culture,
if at all, as a residual phenomenon whose study has routinely been left to
anthropology. With the awakening of a sociological concern with rights,
however, this picture is beginning to change, though Samson and Short note
the limitations of a foundational perspective and stress instead political
power and interest. They also note that indigenous people are driven to
‘claim’ their rights within structures and procedures that are culturally alien
and part of the very system of rule they seek to challenge. However, the
distinct law and traditions of indigenous peoples have no status in either
these systems of rule or the liberal philosophies that underpin them, such
that cultural ‘recognition’ within this context is profoundly problematic.
Their self-assertion as dispossessed first nations speaks against the pursuit of
their rights through the machinery of national citizenship, and increasingly
the struggle for recognition and protection of their distinctive cultures and
ways of life has come to focus on the international forum of the UN.
7 Rights, social theory and
political philosophy
A framework for case
study research
Rob Stones

The purpose of this chapter is to outline a research framework that

can begin to bring together the insights of both social theory and political
philosophy to address rights issues. Their separation is a significant weak-
ness that runs through much of the literature on rights. On the one hand,
approaches to rights from the perspective of political philosophy are too
often uprooted from any concern with the social, cultural, historical,
political and economic specificity of particular cases. Approaches from the
perspective of social theory and sociology, on the other hand, have a ten-
dency to adopt the rhetoric of the moral high ground without any effort to
engage in the kind of sustained moral argument associated with political
philosophy. One of the reasons for this invidious division of labour is the
volume and complexity of the relevant literatures in each field and the dif-
ficulty of knowing where to start. It is these problems that I address, and I do
so by developing some preliminary guidelines for case study research. Such
research can explore the field by dividing it into more manageable, bite-
sized, portions that are less daunting and less forbidding. The idea would be
to develop research strategies into rights issues that are explicitly informed
by social theory and by political philosophy, but that radically limit their
object of study. The aspect of rights under scrutiny would be limited in
having a precise focus – guided by very clear questions or specific problems
about the legitimacy of rights claims and/or the feasibility of their implemen-
tation.1 The studies would also be limited in drawing, self-consciously, only
on carefully delimited aspects of social theory and political philosophy, thus
making realistic demands on the researcher, who will still have to master a
testing range of literatures and skills. The intention would be for a series of
such piecemeal studies, each produced by a more integrated social theory/
political philosophy approach, not only to offer valuable insights of their
own but also to provide the foundations for subsequent cross-study work on
rights.
This chapter is organised as follows. First, I note the sense in which it is
important to think about rights issues in a holistic or embedded manner, one
that roots them in specific sets of social relations and that thinks about
particular rights with respect to other cultural and moral principles. I also
134 Meaning, interpretation and rights
insist, however, that within this frame one needs, for the kinds of practical
reasons mentioned above, to be selective about the sets of concepts one
brings to the analysis of particular rights.
Second, I practise what I preach in focusing only on the rights implications
of certain very limited aspects of social theory – in this instance those associ-
ated with the notion of duality within structuration theory2 and with what I
label ‘socio-moral phenomenology’ – and on certain limited aspects of nor-
mative political philosophy. My focus in the area of political philosophy is
on liberalism in general and in particular on the even more delimited notion
of the autonomy of the individual within liberalism.3 As I proceed I provide
a basic sense of what is entailed in each of these positions. It is no part of my
brief to champion these choices from the lexicon of social theory and polit-
ical philosophy as the only ones worth bothering with, or as the best for all
questions, or even as the best for the questions I directly consider. Instead,
my brief is to demonstrate that the research framework I propose entails
being selective and pragmatic. The choice of theoretical approach to a given
issue will depend partly on one’s own, inevitably finite, judgement about
what is potentially the most fruitful set of concepts to adopt, and partly on
one’s own intellectual formation. In the domain of political and moral phil-
osophy, for example, instead of focusing on liberalism it would be quite
possible to single out concepts from a communitarian or multicultural view,
or from virtue ethics,4 even in relation to the same case study. The change in
the normative focus would lead to a change in empirical focus. No single
approach would necessarily exhaust all the significant things to be said
about a given case study. A dialogue between different approaches can often
be illuminating and I try to give a sense of this in two of the three case studies
at the end of this chapter.
Third, and more specifically, the notion of an ‘internal critique’ is
developed. An internal critique is one that respects the socially embedded
nature of rights issues and hence sees the need to develop critiques of rights
from a vantage point that has a serious grasp of how things look from
within those social relations. Here research would begin with the step of
trying to establish what the de facto popular conception of rights is in
relation to a particular issue in a given time and place. Attention would thus
be paid to the sociological exploration of empirical specificities, including
an exploration of the explicit and tacit normative rules, injunctions and
sanctions at play. This would be combined, however, with concerns associ-
ated more with political philosophy, embracing aspects of abstract political
philosophy thought by the researcher to be relevant to the analysis of the
case at hand, but also – and this is a more sociological, empirical, dimension
of the role played by political philosophy – a concern to explore the extent
to which those aspects are already considered to hold some currency or
moral power within the specific set of social relations relevant to the case
study.
A researcher pursuing this type of case study strategy would thus:
 Rights, social theory and political philosophy 135
• Look at the de facto system of institutionalised rights and at popular
conception of rights, and at any pertinent social divisions within these.
(Draw on social theoretical tools to delineate existing social and insti-
tutional practices and beliefs regarding rights.)
• Decide on the particular aspects of abstract political philosophy that
might be most fruitful to draw upon. (Choose elements of abstract
normative philosophy.)
• Explore the extent to which the chosen aspects of abstract moral
philosophy have a depth of phenomenological relevance and moral cur-
rency in the social relations at hand. The researcher will explore the
extent to which the chosen aspects find a ‘fit’ with deeply held (perhaps
latent) moral beliefs and values in the society at hand. This will often
involve a radical critique of popular, surface conceptions of rights when
those are at odds with the deeper conceptions. The nature of the latter
can be clarified through a combination of phenomenologically informed
social theory and the chosen elements from moral philosophy. (Critic-
ally interrogate the de facto social practices and beliefs on the basis of
chosen elements from abstract normative philosophy.)

It is integral to the notion of an ‘internal critique’, which is discussed further

below, that a judgement as to whether a particular right is legitimate or
illegitimate requires that relevant elements of normative political philosophy
are brought into confrontation with the social theoretical delineation and
analysis of the de facto level of beliefs, practices and institutions.
Finally, I discuss aspects of three case studies in order to draw out some of
the challenges involved in adopting the kind of framework suggested. Each
case study focuses on the issue of the autonomy of the individual, and each
notes the importance of an internal critique that respects the socially
embedded nature of rights issues. I hope that in the examination of these
limited and selected elements from the three cases the complexity of the
issues still remaining serves to illustrate the advantages of a modest, piece-
meal approach. The first case focuses on the essay ‘Liberty and moralism’
from Ronald Dworkin’s influential 1978 volume Taking Rights Seriously,
an essay dealing with the rights of gays in the UK to exercise freedom of
choice over issues of sexuality. The second case draws on Bhiku Parekh’s
discussion in his Rethinking Multiculturalism (2000) of the Indian tradition
of sati, the largely defunct practice of a widow immolating herself on her
husband’s funeral pyre. The third case is even more exploratory than the
first two, in that it expressly sets out to ask more questions than it answers.
It involves the experiences and social circumstances of Thai migrant sex
workers and draws from a number of sociological sources, but primarily
from Kaoru Aoyama’s Becoming Someone Else: Thai Sex Workers from
Modernisation to Globalisation (2005). The fact that the latter case study
draws from social theory and sociology, in contrast to the first two, which
draw primarily from political philosophy, is revealing, albeit in an
136 Meaning, interpretation and rights
unsurprising manner, in that the sociological and empirical detail provided
by Aoyama is inevitably much richer and more fine grained than the material
provided to support Dworkin and Parekh’s arguments. On the other hand,
Aoyama’s study doesn’t set out to have the explicit and sustained focus on
moral and rights issues that mark the former accounts. The purpose of
introducing the third case is thus in large part to show how the latter focus
would reveal new horizons of attention and concern within sociological
research.

Socially embedded views of rights

If one is genuinely interested in the real consequences for individuals and
social relations of thinking in terms of rights then it clearly follows that
one must consider rights issues in terms of how they are embedded within
a society and its institutions. This is the case even for those rights often
thought to be more universally applicable, at the top of value hierarchies –
such as the right to be free from bodily harm or torture – as well as others
such as the right to a job, to free health care or to wear certain symbols of
religious observance, where there is more often readiness to accept that they
may apply only in particular times and places.
Rights are always embedded and always relational. Most serious com-
mentators on rights acknowledge this and note how the exercise of any one
distinct right can potentially have implications for the exercise of others. It
has always been clear to liberals, for example, that the liberties that can be
exercised by an individual must be limited where they conflict with the safety
of others. Thus, the need for a degree of order necessary to ensure other
people’s right to security and freedom from harm has implications for the
range of liberties people have a right to. Not only should rights always
be seen in relation to each other, they should also be seen in some kind of
hierarchy, one that is inevitably related to the socio-political and cultural
traditions of the relevant society. They should not be seen either as atom-
istic, separate from all other considerations, or as somehow uprooted or
disembedded from particular social conditions. Rights are always embedded
in particular societies, located in specific times and places, with their own
historical and institutional legacies and with specific sets of norms and
values, themselves more or less homogeneous or pluralistic. We shall see
that this doesn’t prevent either insiders or outsiders from arguing that a
given local conception of rights is inadequate for some reason, but it
does mean that to have more than superficial force such an argument must
reveal a sensitivity towards, and understanding of, that society and its
circumstances.
When we are investigating the role of rights within a society it is import-
ant to recognise that societal morality has many other dimensions. Other
moral considerations may exist alongside a commitment to rights, more or
less equally, or they may exist as an alternative to rights-based thinking. The
 Rights, social theory and political philosophy 137
latter could be true for societies whose morality is based primarily on
religious principles, for societies based on cultural systems that emphasise
forms of communal solidarity and observance over and above individual
rights, or for societies whose moral systems are based on notions of virtuous
conduct according to traditional systems of thought. The moral world-view
or practical philosophy of a society can be more or less homogeneous and
more or less plural and hybrid. Many societies, and liberal societies should
be counted among these, combine one or more of the alternative emphases
just cited with a concomitant commitment to rights-based morality. The
range of rights adhered to, together with the balance of power between
them, and between different moral principles, is always part of a negotiated,
unsteady and context-dependent balance of moral commitments.

Selected aspects of political philosophy

Moreover, within the liberal tradition itself the very notion of rights can only
be made sense of once located within that wider tradition and its philo-
sophical underpinnings. The wider liberal philosophy is one that includes
the emphasis on order and security, mentioned above, and also usually a
commitment to equality of care and respect and to individual autonomy.
The latter notion, of individual autonomy, is one of liberalism’s most central
concerns and it is the notion I single out for special attention in this chapter.
This is partly because a large majority of Western intellectuals and academ-
ics value it so highly. The sociological, empirical, side of the bargain I want
to strike may reveal that this value is shared by some or many within a given
set of social relations, or it may reveal that autonomy is valued only a little
or not at all by those people. Such a confrontation between the ideal and the
actual can help to prise open some prematurely closed and sealed debates,
such as the one between universalism and particularism, and force more
grounded debates that take both sides seriously in relation to specific in situ
predicaments. Autonomy has been central to the liberal tradition from John
Stuart Mill, through John Rawls’s A Theory of Justice (1971) and Dworkin’s
more legally oriented defence of rights, to the recent influential work of
Will Kymlicka and others on minority cultures. It has been so central as it
denotes the ability of an individual to choose – notwithstanding the neces-
sary caveats – the way they live their life, to choose their own conception of
the good life. An important part of this is that individuals should have the
ability and the conditions to revise their ends, their current conception of
the good life. It should always be a possibility for them to discover that they
have been mistaken about the worth and value of their present practices, and
to change them accordingly. It is easy to see how rights are intimately bound
up with this commitment to autonomy.
In the web of their tradition liberals also typically strive to protect the
individual’s right to dissent with respect to any groups they may be a mem-
ber of, and in this respect they valorise individual rights over the group. In
138 Meaning, interpretation and rights
another respect, however, many liberals are concerned to protect the rights
of groups against the decisions of the larger society – for example, in the
areas of language rights, land rights and federalism, all of which ‘are consist-
ent with liberal equality, since they are intended to ensure equality between
groups, not to suppress dissent within a group’ (Kymlicka, 2004: 132; see
also Kymlicka, 1995: Chapter 3). Liberals also place great emphasis on
issues of education as part of what Dworkin has called the ‘structure of
culture’ within a community, the external cultural context from which we
develop our phenomenological frame and value dispositions. A rich edu-
cational and cultural inheritance is one that ‘multiplies distinct possibilities
or opportunities of value’ (Dworkin, 1985: 229; see Kymlicka, 2004: 117).
Rights to freedom of association and expression should be understood in
this frame, where the ability to form and revise one’s conception of how to
live one’s life depends to a significant extent on the degree to which the
social context fosters and facilitates that ability.
Thus, while liberals’ commitment to the autonomy of the individual
means that they are wary about society or the state interfering with indi-
viduals’ choices about the kind of life they want to live – that is, with
individuals’ conceptions of the good life – the wider philosophy reveals,
nevertheless, that liberals do have a conception of the social and political
conditions necessary for the living of any good life. That is, liberals do have
a significant conception of the necessary social and political conditions
required for human beings to flourish. It is only in the context of the liberal
discourse’s unsteady and negotiated combination of commitments to order,
equality of care and respect, autonomy, the protection of both individuals
and groups, the quality of the cultural structure and a series of overlapping
rights that the commitments to any one specific right at a given time and
place will make sense.

Selected aspects of social theory

While the notion of autonomy can provide a guiding normative concept for
the analysis of specific case studies concerning rights, it has a much more
grounded critical presence when it is coupled with limited aspects of social
theory. Which aspects are chosen will depend upon the purposes of the task
at hand. In situating rights issues in context, large-scale social theoretical
studies, such as those on citizenship, can clearly be useful. Writers on citizen-
ship such as T. H. Marshall (1963, 1977), Michael Mann (1987, 1993) and
Bryan Turner (1986, 1990) have, between them, provided historically
informed accounts of the uneven development of citizenship in a range of
societies, and such accounts can be drawn on, often in combination, to
situate more specific rights issues in their macro socio-historical context.
Thus, for example, it can be very helpful to situate Marshall’s historical
account of the successive emergence of civil, political and social rights
in Britain (Marshall, 1963, 1977) within Mann’s account of the rise and
 Rights, social theory and political philosophy 139
character of European liberal states and party democracies (e.g. Mann 1987,
1993: 92–136, 167–213, 766–74), and with respect to the particular con-
figuration of social forces, groups and institutional complexes at play within
such societies. These accounts, however, are generally restricted to this
macro-level and need to be complemented and extended, and amended
where necessary, by more fine-grained forms of analysis that can link
insights about the wider social and historical forces to the specific con-
juncture. The relevant agents or subjects involved in any particular rights
issue need to be identified and situated with respect to relevant networks of
social and cultural relations, including relevant normative and coercive
influences upon them. They need to be situated both relationally and
phenomenologically and I concentrate on this kind of task in what follows.
To this end I focus on the ontological conception of the duality of struc-
ture that lies at the heart of structuration theory (Giddens, 1984: 25; Stones,
2005: 4–5, 13–16). This is because the notion of duality, with its concern
with how both external social conditions and internal creativity combine
within the phenomenological mind and body of the agent, provides a
clear basis for locating the ideals of autonomy in actual social and personal
conditions. The notion of duality guides one to:

1 Look at the normative and power relations and networks within a

conjuncture.
2 Trace how these are experienced, phenomenologically, within the agent.
There are two dimensions to this latter aspect. One relates to the
relatively enduring values and dispositions that Pierre Bourdieu refers to
as habitus (Bourdieu, 1977: 76–87), and the other is the agent’s grasp of
the immediate circumstances, their perception of the specific conjuncture
(Stones, 2005: 87–100).

The notion of autonomy guides one to ask about the implications of these
two moments for the agent’s freedom. Both the normative conception of
autonomy and the ontological conception of duality can thus act as guiding
concepts for empirical research. It is ultimately an empirical question
whether or not an agent has the internal ability to revise their ends, can gain
sufficient critical distance5 from their conditions of socialisation, habit and
routine to be able to ‘question, re-examine, and revise (their) beliefs about
value’ (Kymlicka, 1989: 18). It is also an empirical question as to whether a
given agent believes there are likely to be external social costs and sanctions
associated with the exercise of autonomy, whether they are correct in their
beliefs and whether the costs would be too great for that individual to coun-
tenance.6 These are all empirical questions to which the researcher will be
guided by the concepts.
The role of social theory need not be restricted, however, to the process of
situating a particular rights issue within its phenomenological, social and
historical context. Proponents of some variants of social theory, bordering
140 Meaning, interpretation and rights
on political and moral philosophy but without their concern for systematic
and deductive reasoning, have spent much time encouraging readers to
think deeply about what it means for human beings to flourish and to avoid
suffering. This strand of ethical social theory has an affinity with the
phenomenological emphasis of structuration theory and with the respect for
the individual that, on my reading, motivates it. In fact, it is perhaps best
characterised as ‘socio-moral phenomenology’ and it is evident in a number
of otherwise disparate writers. It is there: in Richard Rorty’s plea for a
‘sentimental education’, which improves our ability to appreciate the simi-
larities between ourselves and peoples otherwise very unlike us, ‘such little,
superficial, similarities as cherishing our parents and our children’ (Rorty,
1993: 129), as well as our similarities with respect to pain and humiliation,
which novels and ethnographies can move us to understand (Rorty, 1989:
192); in Martha Nussbaum’s concern for us to expand our ‘recognition
and concern’ for others, to use narrative art to ‘see the lives of others with
more than a casual tourist’s interest’ (Nussbaum, 1997: 88); in Zygmunt
Bauman’s Levinasian invocation of ‘being-for the Other’, in which an
emotional engagement with the Other that comes before any thought about
what should or shouldn’t be done ‘casts her/him into the universe of under-
determination, questioning and openness’ (Bauman, 1995: 62). The power
of this kind of theory lies in its recognition of the profound levels of engage-
ment that can be secured by the force of narrative, emotion and sympathetic
identification. The danger of socio-moral phenomenology on its own is that
while its engagement focuses on the concrete, is grounded in real lives,
eschewing what it rightly or wrongly sees as the abstract rationalism of
much political and moral philosophy, the characters who people its narra-
tives are insufficiently anchored in their social circumstances, including the
normative aspects of those circumstances. By tracing the connections
between an agent’s narratives and phenomenology, on the one hand, and
her external social structures and networks on the other, structuration the-
ory can provide much of that anchoring. And by adding to structuration’s
emphasis on the normative, sanctioning, content of the social context a
sustained analysis of the moral legitimacy, or otherwise, of those norms-
within-context then political philosophy can potentially provide a powerful
commentary on that very context and the power relations that sustain it.

Internal critique and rights

Both the situating perspective of social theory and the more hybridised
perspective of human flourishing can be easily and fruitfully articulated with
the incisive notion of ‘internal social criticism’ coined by Mark Cladis in A
Communitarian Defense of Liberalism (1992), a Durkheimian exploration
of contemporary political philosophy. By internal social criticism Cladis
means the kind of approach proposed by Durkheim, in which criticism
‘seeks to reform society by self-consciously working within its historically
 Rights, social theory and political philosophy 141
fashioned social inheritance, that is, its historically situated ideals, customs,
beliefs, institutions, and practices’ (Cladis, 1992: 227). Durkheim’s socio-
logical instincts informed his position on morality. It meant that while he
understood that an ‘ought’ cannot be derived effortlessly for an ‘is’, without
the hard work of detailed argument and dialectical thought, he was ever
alert to the pitfalls of voluntarism, of importing the ‘should’ wholesale from
a place elsewhere, without due respect and attention to the here and now.
Such an insight can be fruitfully articulated with the tools and insights of
structuration theory, as these are clearly designed to help us refine our
appreciation of such things as the ‘historically fashioned social inheritance’
that is necessarily the context for any conflict or disagreement over rights.
Grasping this inheritance would, naturally, involve an analysis of the rele-
vant society’s inherited norms, values, power relations and operative public
values.
Durkheim was himself personally committed to a form of moral indi-
vidualism but he derived this critically from the conventions of the society in
which he lived, from ‘internal’ social criticism. Relying on internal criticism
in a society marked by mechanical solidarity7 could well, it is true, be unduly
conservative, but this is far less likely to be so in societies in which pluralism
is a social fact, where there is ‘a variety of social spheres and communities
with varying degrees of homogeneity pertaining to different values and
commitments’ (Cladis, 1992: 239). Even though the critic’s moral vision will
inevitably be shaped, more or less, by the norms and culture of her age, if
that age is marked by social, cultural and normative plurality then it is
entirely possible for critique and protest to arise within it.
Cladis argues that in such conditions of plurality an internal critique of
current practices often emanates from a self-conscious comparison of our
deep rooted beliefs and views about social norms with the behaviour that we
see is actually fostered and supported by our social institutions and
arrangements. Internal critique can also be prompted by discrepancies
between our social beliefs. Such discrepancies can be brought to light in the
course of practical activity or through the subjection of beliefs to critical
analysis. This notion of internal social criticism overlaps with the ‘concept
of a moral position’ elaborated by Dworkin in the essay, examined in the
next section, on the conditions under which it is reasonable to restrict
another’s freedom (Dworkin, 1978: 240–58). It is worth spelling out at this
point what I believe this overlap to be, as their combination provides a
powerful framework for sociologically informed critique. Dworkin takes
a self-consciously liberal position and his concomitant conception of the
conditions necessary for human flourishing place a heavy burden of argu-
ment on any proposal to restrict the liberty and autonomy of an individual.
More than this, his sociological sense of post-war British society suggests
that this liberal conception marks society itself. In effect, he believes that the
historically situated shared background ideals and beliefs of this society are
overwhelmingly liberal (its moral position). Consequently, these socially
142 Meaning, interpretation and rights
embedded principles (these deep seated beliefs) can be drawn on in order to
engage, from inside the culture, in a critique of any actual or proposed
practices or institutions that fail to adhere to their standards (internal
critique). Ultimately, much of Dworkin’s substantive argument rests on the
sociological, empirical claim about the deep rooted beliefs and norms within
society, and on the extent to which they are actually shared (which is also
the case, for example, for the validity of John Rawls’s notion of an ‘overlap-
ping consensus’; Rawls, 1993: 134–72). Political philosophy often stops at
this point, stops short of an empirical terrain where its pivotal assumptions
are often the subject of intense debate and uncertainty in the social sciences.
In the past two decades such debate and uncertainty has been evidenced, for
example, in radical and variegated disagreements over whether, in the
‘highly developed Western societies’ taken as a whole, there has been a
radical change in values or a limited change of values, a complete loss of
values or a proliferation and fragmentation of values (see Inglehart, 1977,
1989; Bellah et al., 1985; Leinberger and Tucker, 1991; Bauman, 1993; Joas,
2000: 1–10). Such empirically based questions – whether at the level of
groups of societies or, more manageably, at a more local level – need to
be made the subject of investigation and should not be left to the supposi-
tions of political philosophers, no matter how palatable we find what they
suppose.

Three case studies in individual autonomy: gay sexual rights,

sati and migrant sex work

The concept of a moral position and gay sexual rights

In his essay ‘Liberty and moralism’ Dworkin focuses on a lecture delivered
by Lord Devlin to the British Academy in 1958 entitled The Enforcement of
Morals (1959), and on subsequent rejoinders and replies to critics. Lord
Devlin’s conclusions are summarised in this statement about the practice of
homosexuality:

We should ask ourselves in the first instance whether, looking at it

calmly and dispassionately, we regard it as a vice so abominable that its
mere presence is an offence. If that is the genuine feeling of the society
in which we live, I do not see how society can be denied the right to
eradicate it.
(Devlin, 1959: 17, quoted in Dworkin, 1978: 241–2)

The issue of whether the mere presence of homosexuality is an offence is

linked, in turn, to the question of whether it is a threat to the continued
existence of valued social customs and institutions, such as marriage, and,
more importantly, to the majority’s right to follow its moral convictions.
Dworkin’s response is to argue that, even if it was true that the surface
 Rights, social theory and political philosophy 143
majority view of the time condemned homosexual practices, did indeed
think that homosexuality was an abominable vice and was not able to toler-
ate its presence, Lord Devlin’s conclusion is still in error as it is tantamount
to equating morality with opinion polling (Dworkin, 1978: 254). He labels
such a view the ‘anthropological’ view of morality, one that takes people’s
surface views and attitudes at face value as their considered moral stand-
point, although the ‘opinion polling’ view would be fairer, as anthropolo-
gists have a tradition of critique every bit as distinguished as those possessed
by political philosophy and social theory. In any event, Dworkin insists that
this surface conception of morality is an entirely unconvincing one. It is not
enough simply to invoke a moral majority. Instead, the credentials of such a
putative moral consensus must be tested against what he calls the ‘concept of
a moral position’. Moral positions must be contrasted and distinguished
from many other types of attitudes towards human conduct, qualities or
goals, including prejudices against inherited or ascribed characteristics,
rationalizations of unjustifiable emotional reactions, manifestations of per-
sonal aversion or taste, arbitrary stands and so on. These other types of
attitudes need not be accorded the same respect as a moral position as quite
simply they offend the basic ground rules of moral reasoning that are ‘part
of the conventional morality you and I share’ (ibid.: 249)8 and that, in effect,
form the background set of understandings within which we carry on our
form of life. In the case at hand, the guidance derived from the philosophy of
liberalism is that one should not agree to limit the right to sexual choice
between consenting adults on, for example, the grounds of prejudice. One
should not limit sexual autonomy on these grounds. Dworkin writes that
our ground rules of moral conventions stipulate that:

a man must not be held morally inferior on the basis of some physical,
racial or other characteristic he cannot help having. Thus a man whose
moral judgements about Jews, or Negroes, or Southerners, or women,
or effeminate men are based on his belief that any member of these
classes automatically deserves less respect, without any regard to
anything else he has done, is said to be prejudiced against that group.
(Dworkin, 1978: 249–50)

Cladis, too, invokes the case of prejudice as something that is susceptible to

internal social criticism, for much the same reasons as Dworkin. He argues
that just as through introspection people can become aware of deep-seated
prejudices, so this is true of social critique. Indeed, social critique, when it is
based on a plurality of voices in civil society, is perhaps even more likely
to be able to expose prejudices and enhance the self-understanding of
both individuals and the culture itself. This is because of its ability to draw
attention to prejudices that are ‘so much a part of me and seemingly so
self-evident that I never imagined alternatives to them’ (Cladis, 1992: 236).
Both Dworkin and Cladis also argue that consistency is an important
144 Meaning, interpretation and rights
aspect of a moral position. For Dworkin one cannot straightforwardly claim
a moral standpoint on a particular rights issue, such as homosexuality, if
one’s other beliefs and one’s actions are inconsistent with this stated belief.
Thus, someone could offer as their reason to want to ban homosexual acts
the fact that the Bible forbids them, or that homosexual acts make it less
likely that a man or woman will marry and raise children. Now, even if these
views are sincerely held they will still not be sufficient to convince others that
the person holds a moral position if they reject other biblical injunctions that
don’t suit them, or ‘hold that men have a right to remain bachelors if they
please or use contraceptives all their lives’ (Dworkin, 1978: 251). Given that
Cladis sees internal social criticism as a way of protesting against the
practices and norms of one’s own society on the basis of other values and
norms within that society that can be shown somehow to be of greater
importance, one can see the significance of exposing discrepancies between
beliefs and then striving to establish which of the beliefs best describes the
moral identity of that society (Cladis, 1992: 236).
Dworkin concludes that Lord Devlin fails to make his case. Sociologically,
Lord Devlin is not able to provide any evidence that homosexual practices
present any danger at all to society’s existence. Neither is he able to show
that the conception of the popular will is a truly moral one, for he does not
adequately test the character of the opinion polling, surface, view. It is quite
possible that the common opinion is a compound of prejudice, rationaliza-
tion and personal aversion and, as Dworkin puts it, a critical and funda-
mental tenet of the actual morality of liberal societies, of the self-conscious
principles of liberal democracy, is that the restriction of another’s freedom
and autonomy cannot be justified on such a basis. Thus, the explication of
the concept of a moral position implicit in the culture of a liberal democratic
society is one that can be used to test specific proposals, practices, institu-
tions and social arrangements against ‘our best norms, standards, and think-
ing about social justice, ethics and political theory’ (Cladis, 1992: 234). In
other words, the concept of a moral position informs an internal social
critique from within a ‘historically fashioned social inheritance’, and thus
provides at least some of the means by which internal social criticism of a
surface majority view is carried out. The protection of the rights of minor-
ities can be justified on this basis. It needs to be said, however, that one could
easily imagine an alternative culture with an underlying moral position that
did regard homosexuality as an abominable vice. In such cases there may
be significant pockets of thought that rejected such a view, or there may be
hardly any such pockets. The latter cases would test the empathy of socio-
moral phenomenology, but any kind of external critique of that culture
would need to engage in a ‘being-for-the-other’ as much, if not more, in such
cases as in others.
In addition to the points made by Dworkin, we can also note that Lord
Devlin does not show that gay practices are immoral when measured against
the much broader philosophy of deeply held liberal values, principles and
 Rights, social theory and political philosophy 145
models of human flourishing. The practices are not shown to offend any of
the standard substantive liberal tests, such as those demanding that practices
do not harm self or others, that they do not breach higher norms, undertak-
ings or duties and that they do not restrict the autonomy of others to live
their lives in accordance with their own beliefs about what gives value to life
(cf. Kymlicka, 1995: 81).
There can be conflicts and disagreements about rights issues within the
conventional parameters of Western liberal democratic societies that are
more radical than the one discussed by Dworkin. They can be more radical
in the following sense. After close analysis it may be agreed that both the
opposing, contested, views about a particular practice qualify as ‘moral
positions’ within the framework of the society’s operative public values. It is
possible that neither involves prejudice, rationalisation, aversion, arbitrari-
ness or inconsistency or poses an unacceptable threat to the shared concep-
tion of social order. Both positions can thus be socially embedded and in
harmony with many of the norms and ideals of the society but still be at
odds with each other. It is for such reasons that Richard Bellamy insists that
rights issues are ‘essentially contested’ and ‘lack compossibility’, that even
within the same political culture there can be incompatible views about
what our basic rights are and also the need to choose between rights in
conditions of scarcity (Bellamy, 1999: 169). Thus, while proponents of a
positive conception of liberty may argue for taxation to support rights to
education and welfare that would be met, say, by state-supported schools
and a system of social security and health care, libertarians would argue
against such rights. They would argue that:

this would interfere with the right of individuals to do what they wish
with their rightfully acquired property. Robert Nozick even goes so far
as to argue that such taxation is the moral equivalent of granting prop-
erty rights in another person and ‘is on a par with forced labour’, and
hence an infringement of our most fundamental civil rights.
(Bellamy, 1999: 168; citing Nozick, 1974)

Even among those who advocate a positive conception of rights there may
well be a clash between those who wish to spend scarce resources on educa-
tion and those who wish to spend them on health care (Bellamy, 1999: 169;
also see O’Neill, 2002: 23–39). Behind all these disagreements lie variegated
views on the good life, on the optimum conditions required for human
beings to flourish. Thus, even within a liberal democratic culture one very
quickly comes up against the limits of agreement on basic rights.
There is the need here for close and detailed argument and for the ability
to examine the extent to which each side’s abstract moral arguments have
relevance and currency within the socially situated phenomenological
understanding of in situ social actors. There is the need for a kind of socio-
logically informed phronesis in which moral judgements are made on the
146 Meaning, interpretation and rights
basis of a close engagement with, and understanding of, unfolding contexts
of action.9 There is also, ultimately, the need to be able to articulate the
grounds of whatever differences remain.

Sati: a situated conflict between competing rights

As noted, the socially embedded nature of rights will raise different issues in
societies with very different historical formations. Each different rights issue
within a society will, in turn, require one to address different questions and
problems. This indicates the limits but also the strengths of case studies. A
closer look at a specific case can help to open up general issues even if it does
so in a necessarily partial manner. Bhikhu Parekh, in his rich and reflective
landmark study Rethinking Multiculturalism, discusses the case of sati, the
largely defunct practice of a widow immolating herself on her husband’s
funeral pyre, in order to bring out the importance of the social, cultural and
historical context, and the likely empirical consequences, of allowing or
forbidding a particular practice (Parekh, 2000: 280–2). The practice had
been banned by the British in 1829, with the support of Hindu leaders, and
while incidents continued to occur, they were relatively rare. The situation
changed in 1987 when Roop Kanwar, an 18-year-old Rajput woman who
had been married for eight months, mounted her husband’s funeral pyre
watched by thousands of enthusiastic supporters. Circumstantial evidence
suggested that she was drugged (Parekh, 2000: 280). The incident raised
great passions all over India and the size of demonstrations indicated that
many Hindus supported the practice. Within a few months of the incident,
however, the Indian Parliament not only decided to retain the ban on sati but
also passed a law forbidding the ‘glorification’ of the practice. The issue is
parallel to the issue of sexual freedom discussed by Dworkin, in that it
concerns the scope of the right to liberty and the conditions under which it
might be justifiable to restrict another’s freedom. It is different in that we
will see that a number of competing rights are invoked in the sati case, rather
than the contest being between the surface preferences of the majority and
the rights of the minority, as it was in the previous case. The issues are again
similar, however, in that the debate is ultimately about whether the right to
commit sati is ‘a moral position’ that can be defended once it is placed
alongside other beliefs about rights and the more general ground rules of
moral reasoning existing within Indian culture.
Parekh argues that the Indian Parliament was right to sustain the ban
on sati even if it restricted the woman’s right to do what she liked with her
life, and denied her the freedom to live by her deeply held religious beliefs
and to live according to the Hindu way of life (ibid.: 281). His argument
draws on, and respects, liberal notions of autonomy and liberty that he
believes to be a part of the Indian culture, and so he chides feminists and
secularists who simply dismiss such perspectives by fiat (ibid.). While he
takes into account these aspects of the local culture – and such respect for
 Rights, social theory and political philosophy 147
the phenomenological realities of other cultures is a prerequisite for the
opening out to others demanded by Bauman and Levinas – he, like Dworkin,
goes beyond a surface, ‘opinion poll’ view of the moral position. His strat-
egy, however, differs. For while he doesn’t take the pro-sati view at face
value, his critique of it does not entail questioning its status as a moral
position. Instead, he accepts that moral principles are being invoked but
argues that they are too partial given the demands of the case at hand. He
thus brings in additional moral considerations that he believes also to be a
part of the operative cultural values of Indian society to place alongside the
values of the autonomy and liberty of the individual. He doesn’t believe that
the issue of the formal autonomy of the individual should necessarily trump
any other – to invoke internal critique again – relevant societal ‘norms,
standards, and thinking about social justice, ethics and political theory’
(Cladis, 1992: 234). Instead, Parekh draws on notions of community, inter-
dependence and gender inequality, as well as liberty, and then attempts to
think through the social situation of the woman-in-focus within the socio-
cultural, religious and economic circumstances in which she would exercise
formal autonomy. He argues that an:

individual’s life is not exclusively his or hers; others including those

closely related to them also have a claim on it, which is why suicide is
subject to moral constraints. . . . Since the practice of sati has the limited
authority of the tradition behind it, it puts intense pressure on a dis-
traught, confused and socially vulnerable woman to take her life. The
fact that her death is of considerable financial benefit to her in-laws
provides an additional motive for the pressure. It removes a claimant to
the dead man’s property and the rest of the family’s resources, and
enables her in-laws to turn their house into a commercially profitable
shrine. The practice also reinforces women’s inferiority, devalues
human life, generates fear bordering on psychological terror among
newly-wedded women and even men, and deprives children of parental
love and support.
(Parekh, 2000: 281)

Parekh thus believes not only that the interests of others in the community
beside the individual should be taken into account in thinking through issues
of self-harm, and that the avoidance of fear and suffering should not be
weighed lightly against the goods of autonomy, but also that there are many
factors inhabiting an Indian widow’s social context that would compromise
the translation of her formal autonomy into a meaningful substantive free-
dom of choice. Parekh’s account stands out as a work of political philosophy
that is quite remarkably context-sensitive. Notwithstanding this, however,
many of the issues he raises would still be susceptible to a good deal more
conceptually informed empirical analysis than he provides with respect to
particular individuals, such as Roop Kanwar and her significant others, and
148 Meaning, interpretation and rights
their networked circumstances of action. Such analysis could, for example,
explore more deeply the realities and intensities of the enduring values and
dispositions of the habitus of relevant agents, and of their perceived context
of choice. This would provide a potentially much richer picture of the
character and quality of autonomy in particular circumstances.

Migrant Thai sex workers

In considering the experiences of Thai migrant sex workers I draw on studies
whose approach to the empirical is informed more explicitly by social theory
and sociology than by normative philosophy. As the result of this is that
normative positions, while very evident in some cases, remain relatively
unfocused and untheorised, I reverse the emphasis by placing normative
questions at the centre of my brief discussion. It thus becomes very apparent
just how significantly the conceptual frame shapes the object of study,
and more particularly how the introduction of an explicitly normative
dimension to this frame qualitatively alters the focus.
Against the backdrop of Parekh’s discussion of sati, I start by asking a
question about teenage girls beyond the age of consent10 from the poorer
northern and north-eastern areas of Thailand who become sex workers in
Bangkok, in other Thai provinces or in Tokyo, as was variously the case
among Kaoru Aoyama’s respondents (Aoyama, 2005). Should these young
women be protected by the Thai state or by international human rights law
from the pressures put on them by middlemen (and, more often, middle-
women), parents, culture and society to leave home to become sex workers?
More specifically, should they be protected from their parents if the latter
put extreme pressure on them to engage in sex work in order to send money
home, and does it make a difference whether this money would be used to
pay debt, to buy food and other necessities, to pay for a sibling’s education
or to build a concrete house to raise the status of the family within the village
(Pasuk, 1982: 23–4; Bishop and Robinson, 1998: 105–6; Stones, 2002:
226–30)? To what extent in these circumstances should we respect, for
example, the gendered nature of the tradition of bunkhun within the Thai
culture-structure? Bunkhun represents a set of deeply imbued customs
whereby daughters in particular feel an obligation to honour the benefits of
birth and nurturing their parents have bestowed on them through taking up
reciprocal material responsibilities towards their mother and father
(Aoyama, 2005: 118–24, 144–8). Where the issue is not one of force, where
it is in some sense the girl’s decision11 to engage in sex work, but there is a
combination of a limited ‘push’ from others within the person’s social con-
text and that person’s own desire to send money home for any of the above
reasons, or because of a combination of these reasons and the pull of the
city, bright lights, fashion, consumer durables and even a new kind of free-
dom (Aoyama, 2005: 181–9), then could it ever be legitimate to consider
protecting the young women from themselves? Do the specific dangers of the
 Rights, social theory and political philosophy 149
chances of contracting HIV/AIDS or relative differences in working condi-
tions make a difference to our reasoning, and how much empirical evidence
about this will we require for our judgement?
These questions clearly raise issues of autonomy and rights. Again the
issue is parallel to the previous two case studies in that it concerns the scope
of the right to liberty and the conditions under which it might be justifiable
to restrict another’s freedom. Within the combined frame of political phil-
osophy and social theory it is immediately apparent that any judgement will
need to be rooted in the social relations in which the woman is embedded
and in her cultural dispositions. If we were talking about a situation of
forced trafficking, by definition against the wishes of the young woman,
then there is a strong moral justification on the grounds of both liberal
autonomy and universal human rights for saying it is wrong and that she
should be protected. That is, her freedom should be protected. Even here,
however, the sociological dimension would lead one to ask questions about
both possibilities and consequences and not just about abstract principles.
Who would do the protecting and would this be a likely or feasible prop-
osition in the circumstances? Would the consequences of trying to protect
the woman be worse for her and her family than not doing so? There are
causal, evaluative and prescriptive dimensions to these questions. If the sex
work is not forced but there are some ‘push’ pressures on the young women,
then to what extent can we say that their decision is autonomous?12 This
question acquires even greater force if the relevant push factors appeal to
aspects of cultural dispositions (habitus) into which the girl has been social-
ised since birth and from which she would find it difficult to gain critical
distance even if she wanted to.
We are asking questions here about the quality of autonomy in particular
times and places. In this case we are also asking whether the possibility of
autonomy has already been compromised, years before, by prior socialisa-
tion into a cultural structure that is not as rich and diverse as that envisaged
by the likes of Mill and Dworkin. And in such a case we also need to ask, if
we have liberal values, whether it would in fact be impertinent to suggest
that members of that culture question their current idea of the good life. Can
a culture not be both homogeneous and rich, in ways other than the richness
that comes from diversity? If we decided, notwithstanding such concerns,
that it wouldn’t be impertinent to advocate the liberal view of diversity we
would then still need to ask about the likelihood of such encouragement
being effective.13 Against all this it would also be incumbent on any liberal
wanting to deny a sex worker the right to choose, or to deny a widow’s right
to choose the funeral pyre, to spell out very clearly and carefully under
which conditions, if any, these people could be agreed to have autonomously
chosen such a path.14
Finally, to what extent is any notion of autonomy – whether rich or poor
in quality – a necessary precondition for any kind of good life worthy of the
name? As our questions have been directed by the principle of autonomy, a
150 Meaning, interpretation and rights
principle with its intellectual roots in the West, we need to be sensitive to the
‘historically situated ideals, customs, beliefs, institutions, and practices’ in
the northern and north-eastern provinces of Thailand of which we are speak-
ing. To what extent is autonomy something that is valued in these cultures,
and to what extent is it justifiably subordinated to values of social duty and
obligation to others, particularly parents and elders? If this was the case, at
the level of a moral position and not just at the surface level, then would a
liberal want to argue for the greater good of autonomy and its attendant
rights to freedom of choice, conscience, association, expression, a liberal
education and a complex and diverse culture? Such questions about compet-
ing moral positions are clearly central to the idea of an internal critique.

Conclusion
I will conclude briefly. I have set out the case for combining social theory
and political philosophy in the analysis of rights. I have advocated a case
study approach in the first instance, one that is modest, realistic and prag-
matic (cf. Stones, 1996: 36–8, 64–83) in drawing on a limited number of
elements from the vast literatures of social theory and political philosophy
to analyse the chosen case. The cases I have discussed here have explicitly
thematised some of the areas in which adopting the joint conceptual frame
of political philosophy and social theory is essential if key questions are to be
addressed. I believe it would be an entirely positive development if academ-
ics and doctoral researchers in sociology and related disciplines were able to
begin to employ concepts from political and moral philosophy alongside
those from social theory as their guides to research. Likewise, it would be an
exciting and potentially fruitful development if political philosophers began
to ask more questions about how social theory and sociological research
could ground and deepen their own analyses.

Notes
1 For an account of epistemological and methodological issues that provides more
background to these points, see Stones (2005: 120–7).
2 The notion of duality was formulated by Giddens in outlining his version of
structuration theory. See, for example, Giddens (1984) and Cohen (1989). In
Stones (2005), I have attempted to draw together insights from the critiques,
counter-critiques and empirical uses of structuration theory by many authors to
defend what is invaluable in the concept, while acknowledging the need to refine
and develop it.
3 It should be said, however, that the notion of autonomy is always thought within
the more general conception of liberalism and is not treated as an independent
and free-floating concept. If it was treated in the latter way, then one would
clearly be committing the same fallacy committed by a crude checklist version of
rights.
4 On communitarianism, see Sandel (1982) and Bell (1993). On multiculturalism,
see Gutmann (1992) and Parekh (2000). On virtue ethics, see MacIntyre (1981),
 Rights, social theory and political philosophy 151
Crisp and Slote (1997) and Flanagan and Jupp (2001). Stout (1990) is an
interesting example of an argument for the compatibility of virtue ethics and
rights. Mulhall and Swift (1992) and Farrelly (2004) are excellent introductory
overviews to the field of contemporary political philosophy.
5 Nicos Mouzelis has carefully and usefully established the need for structuration
theory to conceptualise differences in the degree to which agents achieve some
critical distance from their perception of the social conditions of action. He
establishes the need for a continuum of possibilities ranging from the entirely
taken for granted to the critically reflective (Mouzelis, 1991: 28; 2000: 748–9).
6 See Stones (2005: 109–15) on the concept of irresistible social forces that
can severely limit the range of meaningful choices available to a supposedly
autonomous individual.
7 Durkheim (1984) argued that traditional societies are characterised by this kind
of solidarity in which few divisions of labour mean that individuals and institu-
tions are relatively undifferentiated and values, symbols and rituals are common
to the group, clan or tribe. This is in sharp contrast to the individualism of
modern societies.
8 This kind of claim always raises, of course, the question of who is designated by
‘you and I’ or ‘we’, and any claim that a particular group shares a set of moral
values can in principle be empirically tested, and the results will naturally vary
between societal groups and cultures.
9 Structuration theory, with its ability to think systematically about the com-
ponents of both the conjuncturally specific terrain of action and the agent’s
enduring dispositions and values, provides the tools with which to anchor phro-
nesis to firmer moorings than the intuitions of an agent’s judgement with which
it is usually associated. For an analysis of the notion of phronesis as employed by
both Aristotle and Gadamer, see Bernstein (1986: 99–104). See also Miller
(1991: 225–36).
10 Issues of age of consent and responsibility towards children raise a number of
additional complicated factors (see Montgomery, 2001: 80–101). For the sake of
clarity in the current argument I therefore just focus on young women above the
age of consent. Moreover, for the sake of this argument I focus on young women,
although sex workers do of course also include older women, boys, men and
transsexuals.
11 The notion of a ‘decision’ itself is in fact even more complicated than I am
suggesting here. In her study, Aoyama (2005: 124–7) carefully disaggregates and
problematises the notion.
12 See note 6 above.
13 Lucinda Joy Peach (2001: 167) has questioned whether most women in Buddhist
cultures have any understanding of themselves as individuals entitled to rights:
‘Thai and Burmese Buddhist women in particular are socialized to be relationally
and family oriented selves rather than autonomous, independent individuals.’
She argues persuasively for a feminist pragmatist perspective on human rights
that pays respect to the role of culture and religion in local cultures, and accepts
that a legal rights strategy is unlikely to be effective in empowering women who
lack ‘rights consciousness’ (ibid.: 184). On the other hand, fine-grained socio-
logical analyses of Thai women in situ, of the kind carried out by Whittaker
(2000) and Aoyama (2005), radically call into question Peach’s undifferentiated
characterisation of them as lacking an understanding of themselves as autono-
mous, independent individuals, as lacking ‘some sense of themselves as agents of
their own lives’ (Peach, 2001: 167, 184).
14 This is important even though, as we have seen in Parekh’s discussion of sati,
there are many reasons why the issue of autonomy is not necessarily the last
word on this matter.
8 Rights work
Constructing lesbian, gay
and sexual rights in late
modern times
Ken Plummer

No international instrument relevant to human rights, prior to 1993, makes

any reference to the forbidden ‘S’ word (other than ‘sex’ as in biological
sexes); that is prior to 1993, sexuality of any sort of manifestation is absent
from international human rights discourse.
Rosalind Pollack Petchesky (2000: 82)

Sociologists view rights as inventions. Rights are never ‘inalienable’, ‘given

in nature’ or ‘handed to us by God’, though these may well be part of the
claims made in order that they can become legitimated and accepted.
Instead, they have to be assembled through political (and moral) conflicts
and eventually institutionalized into laws, ordinances and declarations. It
is a view that is often unpopular among ‘rights campaigners’ because the
suggestion that ‘rights are inventions’ is somehow seen to weaken them. I
do not hold this to be so, and cannot fail to see how all rights in the end
come out of power struggles. To show just how rights are constructed may
help to rob them of a curious mystique and mythological status, and place
them where they firmly belong – in the domain of political and moral talk.
This chapter examines some features of the ways in which rights are
constructed through an illustrative case study of a very new area of rights –
that of ‘sexual rights’. Fifty years ago the formal sexual rights of women,
lesbians and gays were hardly recognized anywhere in the world (the Neth-
erlands – and France, under the Napoleonic Code – being key exceptions),
although there were localized struggles to change this situation. In general,
such rights were denied or ignored; and traditionally gays as a group were
castigated as ill, immoral or dangerous people deserving of treatment or
penal sanction but certainly not ‘rights’. But it is a classic tale to make my
point: a group with no rights at one point in time can assemble them at a
later point.
 Rights work 153
Rights as symbolic interactions
To be clear about the position I argue from, it may help initially to
schematise my general assumptions and argument. Drawing upon both
symbolic interactionism and social constructionism,1 I suggest that:

1 Rights are not given in nature merely waiting to be found.

2 Rights are inventions created by human agents through symbolic inter-
actions. They involve the collective conduct and social meaning of
many, and come into being through the interpretive and activist work of
social movements and a diverse range of moral crusaders and entre-
preneurs: from kings, prophets and philosophers to governments, social
movements, writers and NGOs.
3 ‘Rights work’ involves many people in a continuous round of negotiated
actions that attempt to interpret, rationalize and define both social iden-
tities and related rights. ‘Rights work’ entails claims makers involved in
‘claims’ and ‘counter-claims’, often animated by quasi-arguments and
stories.
4 Rights work takes place in rights ‘arenas’ in public spheres.
5 Sometimes rights work leads to substantive claims made for rights on a
broad and abstract level (human rights, such as those laid down in vari-
ous constitutions and charters); sometimes claims are made for very
specific groupings (collective rights such as those of ethnic or indigenous
groupings); and sometimes they are made for specific human identities.
6 Rights work moves through certain phases and stages. At one point, it is
invisible and hardly articulated; at another it ‘finds a voice’; and at a
later stage it can become habitualized and institutionalized.
7 All rights claims have histories and these are histories of contestation.
8 Rights claims are animated by schisms and fracturings.
9 The struggles over such rights take place not only in local arenas but
also in global ones. They are part of emergent global flows and the
search for a global citizenry.
10 Rights claims and counter-claims can become diffused, and often this
diffusion takes place on a global level.
11 Although rights can be analysed abstractly, the task for sociologists is to
become intimately familiar with the crusaders, their claims and the
social processes through which rights emerge. They need to see ‘rights’
as part of the day-to-day world of lived meaning, and not simply
belonging to the theoretical and philosophical or even legal heavens.
12 Ultimately, ‘rights work’ takes place in morally grounded activities and
political practices. It is a struggle over defining what it means to live a
good life and to be human.

This is schematic and I do not have space to develop all of this below.
Instead, I highlight only a few central issues.
154 Meaning, interpretation and rights
Constructing human rights
A starting concern must lie with those who see human rights as inalienable,
given, universal. They were heralded by natural law theories that somehow
see such rights as given and inhering naturally in the world. Most religions
subscribe to this view – rights (and obligations) may be seen to have been
inscribed in Hammurabi’s Code, the Bible, the Qur’an, the Vedas. But
for the interactionist, such texts do not have inherent meaning. This is
clearly witnessed by the debates, schisms, conflicts and different interpret-
ations such authoritative texts have generated throughout history. By con-
trast, others see rights as constructed: they are built by human beings.
Constructionist positions look at the struggles generated around human
rights, aware that meanings change over time and across different groups –
that such meanings are contested. Constructionists look at the ways in
which some people and groups (often social movements) are claims makers
and do what might be called ‘human rights work’. They clarify laws, write
justifications, generate reports and conferences, network in cyberspace, tell
stories and generally provide rhetorics for human rights. They provide evi-
dence and arguments, identify key types of people (homosexuals, transgen-
dered and people with AIDS), usually against a moral backdrop that helps to
identify ‘trouble’. Different claims makers and different moral backgrounds
would lead probably to a different sense of just what these rights should be.
So while gay activists champion ‘gay rights’, others would claim this
infringes their rights. Likewise, such claims depend upon audiences who will
hear and there is inevitable competition(s) between different claims to rights.
The world of sexual rights almost inevitably speaks to moral codes:
religious, organizational and humanitarian (see Plummer, 1995; Best, 2001;
Loseke, 2003, for accounts of the constructionist view in general).

The long view of rights

Micheline Ishay (2004) has produced an account of the history of human
rights (although she makes no claim to being an interactionist). Seeing this
history as a series of steps both forward and backward, she suggests five
major waves: early times, the Enlightenment, socialism and the industrial
age, the world wars and international rights, and the global age. In each
case, she shows how little positive attention has been given to sexuality. For
instance, in much of recorded history, religions have been the seedbeds of
rights – they have laid out rule books, codes, commandments, ‘ways of
living’ for societies to observe – and although these are not rights per se they
often hint at the rights to come. Yet in most of these early codes, same-sex
relations are strongly condemned. ‘Humanitarian’ as they often are in
providing a seedbed of values for how to live a good life, they are also
harbingers of hate.
What interests me is that only in the last moments of these phases – what
 Rights work 155
is sometimes called late modern times (Giddens, 1991) – do we start to hear
a language of rights around sexualities. It is, as international campaigner
and academic Rosalind Pollack Petchesky (2000) comments, ‘the newest kid
on the block’. There are odd hints of such rights in nineteenth-century
feminism; hints that grow in a few countries during the twentieth. In the
USA, the first major organizations to champion gay rights appear in the
late 1950s (the Society for Individual Rights (SIR), along with the Mattachine
Society and the Daughters of Bilitis), about the same time as the Homosexual
Law Reform Society (HLRS) and Albany Trust (AT) appear in the UK (and
go on to campaign for the 1967 Sexual Offences Bill/Act). But such concerns
do not become part of the global sexual citizenships debates until the 1990s.
We have here a major recent case of the struggle for rights – no one spoke in
such terms at the time of the foundation of the great rights documents, such
as those of the USA, France and the United Nations (Ishay, 1997). Where
were women’s rights or gay rights or, more generally, sexual rights to be
found in all this?
In part this fits a general model I have been developing elsewhere, suggest-
ing some of the stages through which this process of problem designation
moves. In this case we are looking at the ways in which ‘rights’ appear
through ‘rights work’ (Plummer, 1995: 125).

1 Imagining ‘rights’.
2 Articulating/vocalizing: announcing ‘rights’.
3 Inventing identities: becoming storytellers about ‘rights’.
4 Creating social worlds of ‘rights’.
5 Creating a culture of ‘public rights’.

Sociologists ask ‘how the dimensions are carved out, how the number of
people drawn into concern about these discussions is increased, how a
common pool of knowledge begins to develop for the arena participants,
and how all these sub- processes increase the visibility of the problem’
(Wiener, 1981: 14). Rights have long histories stretching back to ancient
civilizations and religions, even though the language of rights – ‘rights talk’ –
only really starts to come into its own with the Enlightenment.
Stretching back into the nineteenth century, through pressure group activ-
ity and social movement building in a number of countries across the world,
‘claims’ were slowly made for the right to different kinds of sexual orienta-
tions and sexual activities. This chapter examines some of the claims made,
some of the stories told and some of the institutions built in order to create
new identities, make new laws and eventually establish codes of rights. It
also looks at the ways in which some lesbians and gays lay counter-claims
(radically rejecting the established, liberal, position), and seek counter-
publics, while other groups make more conservative claims to suggest that
gay and lesbians should not have rights. Rights models remain in contest-
ation. We shall also see how ‘sexual citizenship’ or ‘intimate citizenship’
156 Meaning, interpretation and rights
becomes a major discussion of the 1990s and comes to be applied to a wider
range of sexualities (such as transgender groups and sadomasochists).
Again, at the same time, the notion of ‘gay rights’ is heavily contested in
many countries across the world and is challenged at the United Nations and
in many religious organisations. This chapter outlines this contestation and
the agenda for the future, and argues that ‘rights’, once gained, are never
permanently settled, and can always be lost again.

Making ‘gay rights’

Imagine a time, scarcely less than a hundred years ago, when there was
hardly any talk about sexual rights – let alone homosexual or gay rights (the
words, after all, had hardly been invented; Plummer, 1981). Throughout
most of history such ideas had been more or less unknown, and indeed
same-sex relations had usually been taboo through religious and legal
sanctions. What we start to see are a series of phases in which such issues
become more and more overt: whispered about, spoken about, organized
around, campaigned over, and eventually – very recently – turned into full-
scale ‘rights’ claims. This has involved a lot of crusaders both for and
against; but bit by bit a gay agenda of rights has evolved that could hardly
have been dreamt about two centuries ago. There are now many discussions
and listings of such rights (e.g. Nussbaum, 1999).2 Some of the issues now
firmly on the agenda that could not have been raised in the past are:

• the rights of all people to participate worldwide in consensual acts of

their choice;
• the acceptance of universal lesbian and gay rights, the inclusion of ‘sex-
ual orientation’ in charters of human rights and anti-discrimination
laws and mandatory training in ‘multiculturalism’ and ‘gay affirmative
action’ in many workplaces;
• lesbian rights to be recognized as widely as women’s rights;
• the importance of ‘domestic/registered partnerships’ and ‘marriage’ for
lesbian and gays;
• the gay right to adopt and have children, along with self-insemination
for lesbians;
• the recognition of gays and lesbians in the military;
• the recognition of ‘hate crimes’ that target lesbians and gays (and other
groups) and the prevention of harassment;
• the recognition of materials speaking positively of (‘promoting’?) gays
and lesbians in schools and the workplace, as well as the championing
of widespread gay and lesbian erotica in art and elsewhere;
• the acceptance of transsexuality and transgender;3
• the development of other erotic minorities’ rights.

The struggle for gay rights has assumed different emphases such that what
 Rights work 157
was once hardly imaginable as ‘on the agenda’ has now become reality.
Thus, in its earliest days, the gay rights movement had as its focus the
ultimate decriminalization of homosexual acts – and perhaps the acceptance
(or tolerance) of homosexuality (even if as an illness). These were the ultim-
ate goals of the earliest gay movements. But by the times of Gay Liberation
Front (GLF), the claims made were much more strident. There was the claim
to legal equality; there was the claim to be accepted on equal grounds with
heterosexuals; there was the claim to equal opportunities in school and
work; there was the claim to be free from homophobic attack; there was the
claim to behave as heterosexuals might in the street – holding hands, even
kissing (Gay Is Good, pamphlet, 1970). The emphasis shifted from the
decriminalization of specific sexual acts to a wider acceptance of equal rights
for gays and lesbians. But as the movement gathered momentum, so the
claims became ever more bold and inclusive.
By the mid-1980s, claims were increasingly made that gays and lesbians
should have equal rights to what came to be known as ‘families of choice’
(Weston, 1991). A dual emphasis – on the rights to marriage and the rights
to raise children – became more and more prominent.4 Indeed, in a number
of countries where equal rights had been obtained in a number of areas (the
laws had been changed, equal opportunities charters had been introduced,
governments had incorporated the thinking of many gays and lesbians into
governmental policies), it was the only issue that seriously discriminated
homosexuality from heterosexuality. And hence in December 1988, the first
registered partnership took place in Denmark, followed in quick succession
by a number of Scandinavian countries (Sweden, Norway, Iceland, Finland)
and then others in Europe, the Netherlands being the first country to legis-
late for gay and lesbian marriages. Most countries within the European
Union have legislated for partnerships. And so have many other countries
across the world: from South Africa (also the first country to enshrine
gay rights in its charter), Brazil (a country that also tried to make this a
universal issue through the United Nations) and Mexico (though not – as is
common – without its setbacks). In the United States, the situation is much
more fractured, but one thing is clear: it has become a major source of
cultural division between the pro- and anti-gay lobbies. It seems to be a
major source of ‘irreconcilable differences’ (Caramagno, 2002).
Does all this change simply mean the discovery of hidden natural rights?
Or is it the active work of many people struggling to create a better life for
themselves and others. To grasp this would really require a full-scale histor-
ical study – something that has yet to be done (although there are now many
excellent general histories, e.g. Greenberg, 1988). Still, we can sense, if only
schematically, how the changes unfolded.
From around the mid- to late nineteenth century, the idea of ‘the homo-
sexual’ as a kind of person comes into being – the clinical creature found in
the writings of Richard von Krafft Ebing, for instance. Minor campaigns
begin that attempt to take the homosexual out of the realm of law and place
158 Meaning, interpretation and rights
him within a medical model of understanding and treatment. By the start of
the twentieth century, in the works of those like Havelock Ellis and Magnus
Hirschfield, we start to see claims being made over the rights of these homo-
sexuals – in the case of Hirschfield (whose work was ultimately destroyed by
the Nazis), we see the creation of a centre and an organization designed to
campaign for the rights not just of the homosexual but also the transsexual.
(On all this, see Lauritsen and Thorsdad, 1974; Weeks, 1990; Oosterhuis,
2000.) In the middle of the twentieth century, we see a proliferation of
rather low key, often apologetic (but sometimes communist) organizations
who start to put homosexual rights more and more on the political agenda
(see D’Emilio, 1983; Dorr Legg, 1994).
In the UK, a history extending from Oscar Wilde to the Wolfenden Report
helped to make a public language of homosexuality more and more access-
ible (Westwood, 1952, 1960). The Wolfenden Report was the result of a
government inquiry set up to look into several ‘homosexual scandals’ in the
early 1950s. This commission established a framework for moral discourse
in Britain about such matters. For all its flaws, it helped to make homo-
sexuality a public issue and crucial morals crusaders emerged around it – the
HLRS and the AT. It argued that there was an area of personal morality that
was simply not the law’s business. It argued for, and helped to create, a
public space controlled by the law and a private space that was not the law’s
business. Stuart Hall has identified this as ‘Wolfenden’s double taxonomy:
towards stricter penalty and control, towards greater freedom and leniency;
together the two elements in a single strategy’ (Hall, 1980: 14). Ultimately,
Wolfenden’s proposals came to be enshrined in the Sexual Offences Act
1967, which effectively decriminalised homosexuality in England and Wales
(but later in Scotland, 1980, and Northern Ireland, 1982). What Wolfenden
so clearly reinforced was a public/private split – and along with this the
culture of the closet. It was far from being a ‘rights document’, for while
homosexual acts between consenting adults were no longer illegal, this was
only so in private places between two consenting adults. The division of
public and private space was central to this, leaving the stigma of the past
still hanging over homosexuality and keeping it a crime in many situations.
For most gay men and indeed lesbians (who were not directly touched by the
law), this still meant that their lives would be conducted in the closet. Gay
cultures have been powerfully shaped by this: the culture of homosexuality
was one of passing and hiding (Wolfenden, 1957; Hall, 1980; Plummer,
1981; Jeffery-Poulter, 1991).
The next striking stage in the creation of gay rights was the emergence of
the GLF in a number of Western countries in the late 1960s and early 1970s.
In many respects a new social movement, it built on a politics of identity
to bring out ‘gays’ as self-identified people demanding rights. With new
slogans, lists of demands and rights, badges and marches, it raised public
awareness of homosexuality in a way that simply had not happened
before. It made ‘coming out’ a major political process at the forefront of gay
 Rights work 159
politics. ‘Gay was good’ and it was going visible (Walters, 1980; Weeks,
1990; Power, 1995). These new groups soon divided – either into factions
that were more assimilationist, liberal and rights-oriented (seeking equal
rights with heterosexuals) or into those who were more radical and chal-
lenging (Marotta, 1981) – establishing a split that continues to this day (see
below).
Then came a broad phase that was bitter sweet: it was the arrival of HIV/
AIDS between 1981 and 1986, and ironically it worked to strengthen the gay
movement. For the first time, hitherto ‘outcast gays’ came to work with the
government in shaping policies. They became professionalized. More than
this, they had to deal with the linkage between gay rights and health rights –
in many ways the latter was much more acceptable than the former, and
hence new links over rights talks were established. Perhaps most signifi-
cantly, since HIV/AIDS was an international issue, it brought gay and health
rights on to a world stage. We see the first stages of an internationally recog-
nized gay movement (there were elements before but this firmly established
it – the International Lesbian and Gay Association (ILGA) was founded in
Coventry in 19795). I do not want to overstate this. AIDS was after all a
serious pandemic which brought chronic illness, early death and tragic
bereavement for many disproportionately young men. But, in an ironic
twist, it also brought a revitalization and professionalism to a slumbering
gay movement (Davies et al., 1993; Berridge, 1996).

The globalization and anti-globalization of gay rights regimes

This globalization of gay rights is perhaps the most significant recent devel-
opment. We have seen the diffusion of sexual rights claims across the
world, and the creation of global sexual rights regimes. In part, this has
been due to the rise of a global gay movement (Adam et al., 1998), along
with an increasing search for ‘cosmopolitan democracy’ and ‘global cit-
izens’ (Albrow, 1996). The gay movement has had more success with
NGOs such as Amnesty International and Human Rights Watch than with
other groups.
However, in practice, as some nations have implemented quite wide-
ranging gay rights programmes, others have not. In some cases, this is seen
as another attempt by the West to impose its own values and claims
(Altman, 1997, 2001; Bell and Binnie, 2000; Binnie, 2004). But in many
cases it is seen as much worse than this, as a serious clash of moral values,
what has been called ‘the clash of sexual civilizations’. Modifying Hunting-
ton’s (in)famous thesis,

At this point in history, societies throughout the world (Muslim and

Judeo-Christian alike) see democracy as the best form of government.
Instead the real fault line between West and Islam, which Huntington’s
theory completely overlooks, concerns gender equality and sexual
160 Meaning, interpretation and rights
liberalization . . . the values that separate the two cultures have much
more to do with Eros than demos.
(Inglehart and Norris, 2003a: 65)

In most ‘traditional’ societies the issue of gay rights remains abhorrent. Such
relationships will be recognized, and indeed are seen in opposition to human
rights. In many countries around the world today sexual minorities are
outcast: they may be bullied, harassed and mocked, be discriminated against
in work and school, suffer unfair arrest and imprisonment, be treated as ill,
be rendered the victims of ‘hate crimes’, fined, flogged, tortured, raped and
executed. They may be driven into self-loathing and suicide. More than
70 countries have laws that criminalize homosexual relations. In Iran,
Afghanistan, Saudi Arabia and Chechnya, gay sex can lead to the death
penalty. From Europe to Africa to the Americas to Asia, case after case of
torture, ill treatment, violence and discrimination against lesbians and gay
men is documented. In Colombia, ‘death squads’ routinely target and kill
gay men and transvestites as local authorities promote limpieza social (social
cleansing). The death squads operate without fear of prosecution as the
gunmen themselves are often police officers and gays are regarded as ‘dis-
posable people’. There are also very many cases of transgender rights
activists – ‘the ultimate gender outlaws’ – being abused across the world. In
short, sexual minorities are seen neither to deserve rights nor to be treated
in any ways as equals. (See Vanessa Baird, 2001, 2004, for documentation.)
Nor has ‘gay rights work’ had much success at the level of international
governmental organizations (IGOs), though rather more so with the informal
level of NGOs. In the world of public cultures of human rights like the
United Nations, sexual rights may be seen as the latest and a neglected issue
and their claims have been scarcely heard except through the women’s
movement. Although implicitly they may be read into various charters of
rights (the right to happiness and freedom etc. could surely also mean sexual
happiness and freedom6), and although they have (a much shorter) history
built from gay activism with their own gay charters, it is only very recently
that they have specifically and directly entered the international public
domain. And here it is mainly through the rights work of the women’s
movement, and especially the work of the transnational women’s health
movement, which became galvanized in the UN-sponsored women’s confer-
ences in Vienna (1993), Cairo (1994) and Beijing (1995), that the situation
started to change.7

The impact of women’s rights

Although traditionally the women’s movement’s core concern in this field
has been with women’s reproductive rights, bit by bit they have been able to
put together a much more wide-ranging programme that claims sexual
rights as human rights like any other essential rights. Women’s rights to
 Rights work 161
sexual equality, their right to control fertility or the right to marriage have
been mentioned but it is only recently that sexual rights have made any
headway. A section of the final Beijing document reads:

The human rights of women include their rights to have control

over and decide freely and responsibly on matters related[?] to their
sexuality, including sexual and reproductive health, free of coercion,
discrimination and violence. Equal relationships between women and
men in matters of sexual relations and reproduction including full
respect for the integrity of the person, require mutual respect, consent
and shared responsibility for sexual behavior and its consequences.
(Petchesky, 2003: 38)

In these debates many terms can get conflated: sexual rights, gay rights,
reproductive rights, intimate rights, human rights and a concern over sexual
abuse and violence. They are not the same and each needs to delineate its
own domain of duties and responsibilities. In particular, Miller suggests that
sexual rights and reproductive rights should not be conflated, as otherwise
individuals engaging in non-procreative sex (or non-sexual procreation?)
can be disenfranchised. We need to see how these rights connect differently
with different issues (Miller, 2000: 96). Miller also wants to be clear about
the right to be free from (what can be called a violations approach) and the
right to do something (a promotions approach).
Of course, such programmes as these have been open to much attack
within the United Nations. Rights are always heavily contested (Smith and
Windes, 2000). Indeed, they depend upon contestation in order to take
shape and be given life. Thus, the attacks on sexual rights come from many
sides: from the Vatican, from Muslim organisations, from the US govern-
ment and President Bush. And such right-wing and fundamentalist back-
lashes serve to make the rights claims more visible, while simultaneously
managing to impede them. Nevertheless, Rosalind Petchesky (2003: 39) is
hopeful about the future, suggesting that ‘slowly and incrementally, women’s
determination . . . to gain some control over their fertility and bodies was
starting to make an impact on international human rights’.

Backlash: the global family movement

One interesting ‘backlash’ alliance between the major monotheistic religions
across the world (conservative/fundamentalist versions of Christianity,
Islam and Judaism) emerged during the latter decades of the twentieth cen-
tury to establish what might be called a ‘natural family agenda’. A key
organization, the Howard Center, puts it well:

The World Congress of families coalition model represents the final

opposition for an effective pro-family model world wide. All coalition
162 Meaning, interpretation and rights
members, usually orthodox religious believers, are asked to set aside
their own personal theological and cultural differences and agree on one
simple, unifying concept: the natural family is the fundamental unity of
society. If coalition members can agree on this concept, then all of their
other disagreements may take a back seat.
(Cited in Buss and Herman, 2003: xiv)

This includes such organizations as the Catholic Family and Human Rights
Institute, The Howard Center itself, Human Life International, the Family
Research Council, Concerned Women for America, the World Family Policy
Center and of course the Vatican. The Vatican has not only decreed in vari-
ous encyclicals, but also has ‘permanent observer’ status at the United
Nations. The ‘Holy See’ is the official face of the Vatican at the UN. It has led
to the World Congress of Families (WCF). It has also produced what Buss
and Herman (2003: xxxiii) have called ‘Christian right social science’. It has
played a key role at a number of international conferences (Cairo, Cairo+5;
Beijing, Beijing+5) with all kinds of strange bedfellows (not just Christians
with Muslims, but Catholics with Protestants) joining forces globally against
the ‘global liberal agenda’ – and more specifically with feminism, humanism
and lesbian and gay rights along with socialism, environmentalism and
‘new-age spirituality’. Sexual rights are strongly contested.

Towards intimate citizenship?

One of the most recent developments in the struggles for sexual rights has
been the turn to ‘citizenship debates’. Citizenship has a long history, and in
recent years has become something of a buzz word. What is crucial in all of
this is the construction of subjects (or subjectivities) to which rights and
obligations may be ascribed. T. H. Marshall’s (1950) classic model of citi-
zenship suggested a development model of civil, legal and welfare rights
emerging in Westernized societies. But these days it is used more broadly and
has come to signify a model of ‘social inclusion’ or ‘full participation’, and
has been harnessed by feminist and lesbian/gay political agendas seeking to
claim their own ‘social inclusion’ but drawn upon a much wider canvass
(Lister, 1997; Richardson, 1998, 2000).
The starting point for discussions of sexual citizenship was David Evans’s
Sexual Citizenship, published in 1993. He is sharply critical of the con-
ventional use of the term. As he puts it, ‘The history of citizenship is a
history of fundamental formal heterosexist patriarchal principles and prac-
tices ostensibly progressively “liberalized” towards and through the rhetoric
of “equality” but in practice to effect unequal differentiation’ (Evans, 1993:
9). Evans is here making a point close to the idea of civic stratification
discussed in Chapter 4, and moves on to introduce his own concept of sexual
citizenship, ‘which involves partial, private and primarily leisure and life
style membership’ (ibid.: 64) and which he connects to the market. Most of
 Rights work 163
the book is given over to discussions of specific groups mainly in the UK
context, and his major example is of course ‘gay rights’ and the ‘homo-
sexual’. But he goes further and also considers the sexual rights linked to
women, bisexuals, transsexuals and children. What is crucial in all of this is
the construction of subjects (or subjectivities) to which rights and obliga-
tions may be ascribed. Sometimes this can be controversial: in mentioning
children – and asking if they are sexual citizens with sexual rights – he heads
straight for a minefield of controversies connected to the boundaries of
sexualities. But such issues needed surely to be placed on the agenda, along
with the more accepted rights of a child.
A few years later, one of the leading UK sex analysts, Jeffrey Weeks, also
raised doubts about the ways in which the idea of citizenship had been used
in the past. He sees it as a ‘major element of sexual politics since the 1970s,
largely in the form of campaigns for rights’ (Weeks, 1995: 118). But the
articulation of the ‘sexual citizen’ is much more recent and has made much
more formal and explicit the idea of sexual rights that much of the gay and
lesbian debates had been developing over the past thirty years. He sees a new
‘sexual citizen’ arriving, and charts how this idea may help to move forward
politics connected to the relationships between men and women, families,
the denaturalization of the sexual, balancing different communities and
their claims and trying to live life with diversity and common humanity.
Likewise, Bell and Binnie (2000) look at the place of sexuality in both polit-
ical and social theory, showing how the sexual is (still, after all these years)
routinely minimized, written out, ‘trashed’. As they say, in a telling state-
ment, ‘we consider all citizenship to be sexual citizenship, as citizenship is
inseparable from identity, and sexuality is central to identity’. For them,
sexual issues go to the heart of citizenship, and with that the theory of
inequalities and the state. Finally, then, by the early twenty-first century,
hitherto marginalized discussions of sexual rights start to assume prominence
in citizenship theory.
There are a growing number of thinkers who are examining these citizen-
ship rights. Diane Richardson (2000), for instance, drawing on both lesbian
politics and women’s rights, argues that we live in an age when the politics
of citizenship increasingly define ‘sexual politics’:

Globally we are witnessing gay and lesbian movements (and sometimes

bi/sometimes transgender) which demand ‘equal rights’ with hetero-
sexuals in relation to age of consent laws, to healthcare, rights associated
with social and legal recognition of domestic partnerships including the
right to marry, immigration rights, parenting rights, and so on. In a
similar vein, there are groups campaigning for ‘transsexual rights’
including the right to sex change treatment on the National Health
Service, the legal right for birth certificate status to be changed, and
related to this the right to marry legally. Recently there have been
attempts to place ‘sexual rights’ on the agenda of disability movements,
164 Meaning, interpretation and rights
especially in relation to disabled people’s rights to sexual expression. . . .
We can even see some evidence of the language of citizenship being used
in movements or campaigns whose politics are definitely not about seek-
ing formal equality with heterosexuals. An example of this is the
focus on prostitution as a human rights issue by some radical and
revolutionary feminists.
(Ibid.: 9)

Again, she looks at the classic models of citizenship, and trying to see how
they may be applicable to lesbian and gay rights she finds them severely
lacking. She sees that claims to citizenship status generally are not just guilty
of strong male bias, a point made by many feminist writers. The problem
goes further: citizenship also privileges heterosexuality. ‘Within discourses
of citizen’s rights . . . the normal citizen has largely been constructed as male,
and . . . as heterosexual’. Hence she goes on from this to identify a number
of areas where the rights of sexual – as opposed to heterosexual – citizenship
should be claimed. She names three main areas of sexual citizenships
and rights. The main areas for her are: (a) seeking rights to various forms
of sexual practice in personal relationships, including pleasures and self-
determination (e.g. the right not to be raped, as well as the right to have
children); (b) seeking rights through self-identity definition, like the option
to name the kind of sexual person one is, alongside the right to self-
realization; (c) seeking rights within social institutions, meaning public val-
idation of various forms of sexual relationship, including the right to choose
partners and the right to public recognition (ibid.: 75). Her arguments lead
us to see that just as citizenship is racialized and gendered, so it has been
sexualized.
My own concerns have gone beyond the idea of sexual citizenship. While
this is an important issue, late modern times are witnessing a considerable
array of new personal or intimate dilemmas. Establishing rights and obliga-
tions around sexuality are important; but so too are the new decisions that
have to be taken over assisted conception (from surrogate mothering to the
freezing of sperm and embryos), the buying and selling of body parts, the
making of new kinds of families, the new ‘transitionings’ over gender (as
men become women and women become men), the development of new
relationships over the Internet and the new medical technologies such as
Viagra and ‘morning after pills’, which could change the ways in which we
conduct our personal lives. Again, these are all globally contested areas.
They lead to debates around what I have called elsewhere intimate citizenship
(Plummer, 2003).

Queering citizenship
A recent development has been a shift from the analysis of ‘sexual rights’ to
those that emphasize ‘queer theory’. This position, which developed in the
 Rights work 165
late 1980s in the work of Butler, Sedgwick and Warner, challenged the
orthodox terminologies of gay, bisexual, lesbian, male and female and
advocated a language of deconstruction, destabilization and depolarization
(see Plummer, 2005). In this argument there could be no straightforward
view of sexual rights, which is seen as a process of the normalization of
sexuality. It shuns, for instance, the notion of the ‘good and responsible
lesbian and gay citizens’ who are inside the charmed circle of citizens, with a
world of gay and lesbian married couples raising their children. Instead, it
looks at a ‘a less respectable, dangerous gayness’ composed of the sexual
outlaw, the sexual fringe, the transgressor. Smyth (1994) makes a particular
point about the sexualized lesbian: to see lesbians as highly sexualized, fet-
ishistic, ‘fucking’ creatures poses a threat to the usually desexualized image
of the lesbian citizen. The radical edge of being gay and sexual cannot be
simply assimilated into a culture of rights and obligations.
The process being highlighted here has been called ‘normalization’ (Phelan,
2001). While the normal citizen has been stretched to include the homo-
sexual and the sexual being, it only includes those who fit a certain model –
those who want families, conform to gender roles, link love and sex. They
want to stress not their differences but their sameness, they want to have and
raise children, they want to be inside the armed forces: they share ‘family
values’. Often they are models of middle-class consumption and individual-
ism. All this has been challenged by the queer movement, which raises
orthodox ‘sexual rights’ as a problem, and starts to speak instead of ‘queer
rights’ as part of a new order entailing a transgression of all categories, a
celebration of marginalities and dissidence. For some this may mean the
arrival of ‘bi-theory’ and ‘gender bending’ as a way of unsettling the certain-
ties of the sexual and gender orders. It has meant, in almost ironic twist, the
arrival of gay men who have sex with women, and lesbians who have
sado-masochistic sex with men.
A leaflet circulating in 1991 put it bluntly:

Queer means to fuck with gender. There are straight queers, bi queers,
tranny queers, lez queers, SM queers, fisting queers in every single street
in this apathetic country of ours. . . . Each time the word ‘queer’ is used
it defines a strategy, an attitude, a reference to other identities and a new
self understanding. (And queer can be qualified as ‘more queer’, ‘queer’,
or ‘queerest’ as the naming develops into a more complex process of
identification.)
(Smyth, 1992: 17, 20)

So ‘queer’ means theoretically deconstructing and postmodernizing; practic-

ally breaking down all categorizations in gender, erotic and intimate lives;
and politically following the above through to sustained critiques of the
existing sexual/gender rights systems and working to change them.
166 Meaning, interpretation and rights
Conclusion: contested constructions
All these issues are of course strongly and hotly contested, but compared to
what could have been argued one hundred years ago, the agenda on sexual
and intimate rights is looking strikingly different. Most of the above claims
were hardly even thinkable then. What we have witnessed, at the closure of
the twentieth century and the opening years of the twenty-first, has been not
just the fulfilment of some of the main claims of an earlier lesbian and gay
movement, but many of their wilder dreams also becoming a reality in some
parts of the world. This is not to disagree with the claims that in all countries
there still exist massive and pervasive forms of domination, persecution and
discrimination for lesbians and gays and that in many countries throughout
the world, no gains at all have been made. But it is to start to recognize that
many gains have been made in many places – even though these are very
uneven and leave many groups still excluded. A new visible public culture of
lesbian rights, gay rights, transgender rights – indeed, intimate citizenship or
even queer citizenship – are in the process of being created, even as they are
contested.

Notes
1 Symbolic interactionism was a term coined by Herbert Blumer in 1937 (Blumer,
1969) to capture the grounded analysis and intimate familiarity with the creativity
of action in social life and the lived processes of everyday life and the languages
and meanings that emerge through them. Allied is the constructionist view, which
sees social life not as obdurate and fixed but as produced through social life
(Berger and Luckmann, 1967). It has been argued by Maines (2001) and Atkinson
and Housley (2003) that these positions are really quite widespread within soci-
ology, even if often not acknowledged. They are closely linked to the philo-
sophical traditions of pragmatism identified with Dewey, James and Mead, and
more recently Rorty. In any event such positions shape my arguments in this
chapter.
2 For example, see Martha Nussbaum’s (1999: Chapter 7) discussion. Here she
lists: the right to be protected against violence, and in general, the right to equal
protection under the law; the right to have consensual adult sexual relations with-
out criminal penalty; the right to non-discrimination in housing, employment and
education; the right to military service; the right to marriage and/or its legal
benefits; and the right to retain custody of children and/or to adopt.
3 Side by side with this listing is a concern over discriminations, which include
sexual offences laws, the use of beatings and tortures in custody, hate crimes,
invisibilities, the concern over young gays and lesbians and discriminations
against them, employment discrimination, freedom of expression and association,
religious leaders supporting discrimination (see Beger, 2004: 107).
4 As ever we must beware of the dangers of essentialising homosexuality and making
it look the same across cultures and throughout history. The important work of
the late historian John Boswell (1995) – although he was an essentialist – shows
that same-sex marriages have existed in the past.
5 In 1993, ILGA was granted ‘roster status’ as an NGO by the UN Economic and
Social Council (but this was later withdrawn, as they could not convince it that
they did not condone sex between adults and minors). It now has some 300 ILGA
 Rights work 167
members groups in more than 80 countries (Felice, 1996: 48). Its key slogan is
that ‘gay rights are human rights’.
6 Generalist and abstract accounts of sexual rights often draw upon the broad
claims of earlier charters. For instance, the charter drawn at the World Congress
of Sexology in 1999 often just seems to add the word ‘sexual’ to rights that have
generally been at the forefront of the rights movement. To illustrate, they suggest
some eleven rights, such as the right to sexual freedom, which encompasses the
possibility for individuals to express their full sexual potential. However, this
excludes all forms of sexual coercion, exploitation and abuse at any time and
situations in life.
7 The first dealt with gender-based violence, sexual stratification, rape, sexual
slavery, harassment and exploitation. The 1994 conference dealt with sexual
health and came mainly from health lobbies and HIV prevention. The 1995
conference is more cautious.
9 The sociology of indigenous
peoples’ rights
Colin Samson and Damien Short

It has become increasingly clear that the vociferous insistence on liberal

market capitalism and strong nation states as the solution to all manner of
global problems is another expression of Western dominance. These twin
globalising forces operate at the expense of both the natural environment
and the vitality of small peoples whose ways of life depend on autonomy and
cultural continuity. One response to this juggernaut is the appeal to human
rights, apparent in the international activism of hitherto separate groups of
indigenous peoples. Members of relatively small groups such as the Ogiek,
Wirajuri, Mapuche, Nahua, Blackfoot and Innu now pass through the halls
of the United Nations and are intimately involved in the negotiation of their
rights with states and multinational corporations.
Historians, anthropologists and political theorists have all undertaken
research on indigenous peoples and their human and other rights. However,
relatively few sociologists have taken an interest in a subject that is now truly
global in its ramifications. Starting from the premise that the contemporary
consideration of indigenous peoples’ rights is bound up with European
colonial expansion, we outline some of the features of a sociological under-
standing of indigenous rights. We start by considering indigenous–European
relationships and the authoritative frameworks within which such relation-
ships have been encapsulated. Then we look at the colonial processes of
territorial dispossession and forced cultural change, which lie at the heart
of contemporary indigenous rights appeals. From there we consider the
problematic conceptions of indigenous peoples in sociology and sociological
approaches to human rights. Finally, we contrast the social and political
critique of rights contained in the writings of various indigenous scholars
with the individualistic and statist notions advanced by liberal democratic
theorists.

Indigenous peoples and European expansion

During the era of European expansion from the sixteenth to the eighteenth
centuries, the rights of ‘savages’, ‘infidels’ and ‘heathens’ were a matter of
debate among legal scholars, philosophers, politicians and statesman in the
 The sociology of indigenous peoples’ rights 169
grand courts of Europe. As early as the sixteenth century, the Dominican
theologian Francisco de Vitoria was asking the question, ‘by what right were
the barbarians subject to Spanish rule?’ Although Vitoria (1991: 278–92)
argued that the right of dominion came from eight possible ‘just titles’, the
occupation of the territories of indigenous peoples in the Americas was no
mere formality. Although frequently violated, many of the relations between
the European powers themselves were tacitly regulated by various shared
agreements on the rights that could be accorded to both European invaders
and indigenous peoples. This was especially the case in North America, where
the treaty was used as an international instrument, setting out agreements
between sovereign entities.
In some areas of colonial expansion, however, no agreements were made
because Europeans assumed that they alone were sovereign and that indig-
enous peoples had no rights whatsoever. This was because their supposed
cultural inferiority and non-agricultural mode of subsistence was deemed by
influential philosophers such as John Locke and legal scholars such as
Emmerich de Vattel to prevent indigenous peoples from exercising any
meaningful sovereignty. Under the accompanying doctrine of terra nullius,
indigenous occupied land was deemed to be an open wilderness. This was the
case in a handful of locations, most prominent of which is Australia, where
no legal formalities were extended to Aborigines, who were simply dispos-
sessed by settler land grabs, often of a violent nature. In many instances,
however, as Jennings (1975) has shown with regard to New England,
colonial powers simply used whatever ‘principle’ was convenient to dispos-
sess the original inhabitants. In practice, indigenous peoples who signed
formal agreements fared no better than those who did not, since the terms of
treaties were frequently ignored, violated or not enforced.
With time the international rights sketched out by agreement between the
various colonial powers gradually came to be treated as matters of domestic
state policy.1 In the long interlude between first contacts and the mid-
twentieth century, the international legal basis for the rights of indigenous
peoples was conveniently forgotten, and correspondingly little or no con-
sideration was given to the validity of indigenous laws and concepts of
rights. Although indigenous peoples’ rights vary internationally, such rights
have been granted within state-centred legal structures operating under
simple assertions of sovereignty. Only after the Second World War with
various international standards for the treatment of indigenous peoples
drawn up by the United Nations, the Organisation of American States and
the International Labour Organisation did any serious transnational discus-
sion take place. Over the past decade, the UN Declaration on the Rights of
Indigenous Peoples has reinvigorated discussions of rights of indigenous
peoples to their lands, laws and ways of life as supranational concerns.
When the UN tackled the issue of indigenous peoples rights in the 1980s,
it concentrated on first establishing who they are. The most widely cited
definition of indigenous peoples was advanced by Jose Martinez Cobo,
170 Meaning, interpretation and rights
the special rapporteur of the subcommission of the Working Group on
Indigenous Populations. Cobo defined indigenous peoples as descendants of
original inhabitants of regions colonized or invaded by what became a dom-
inant population. Importantly, the definition also emphasized that such
peoples had maintained cultural continuity distinct from other groups of
state populations and constituted a non-dominant sector of the societies in
which they found themselves (Cobo, 1987; Miller, 2003: 63–5; Niezen,
2003: 19). This definition most obviously fits areas of the world such as the
Americas and Australasia, where Europeans colonized lands and peoples in
the centuries of expansion and left all authority in nation states comprised of
settlers and their descendants.
However, even within the Americas considerable differences are apparent
in the treatment of indigenous peoples by different colonial powers. For
example, as a result of the English emphasis on private property and land
ownership, territorial dispossession was carried out with greater despatch
in former British colonies than elsewhere (see Seed, 2001). Although the
Spanish killed and plundered, their colonialism did not specifically depend
as much on ownership per se. Indigenous lands in many, although not all,
areas of Latin America have been given more formal protections than in the
largely Anglo-Saxon United States. While many indigenes simply became
absorbed in larger mestizo populations, and would technically fall outside
Cobo’s definition, others have had specific constitutional and jurisdictional
rights recognised by the state itself (see Hindley, 1996; Assies, 1998).
Africa and Asia are different again. While they have maintained cultural
continuity, African and Asian indigenous peoples are not under the govern-
mental authority of a European diasporic regime. Decolonization on these
continents was achieved by simply handing over power to favoured and
cooperative ethnic groups or by configuring various ethnic groups into a
political elite. In Africa, this became the only route out of colonialism short
of armed insurrection (Davidson, 1992: 99–101). In order to ensure political
continuity, many colonial powers, Britain in particular, insisted that
independence should operate within colonial political structures. Thus,
African postcolonial elites proceeded to ‘independence’ by wielding Euro-
pean instruments of power within European political institutions. This
process meant that ‘Africa’s real nations were superseded by non-
nations and their histories, cultures, languages and ways of life were
treated as backward and irrelevant’ (Hameso, 1997: 9). However, the ‘first
people’ of Africa are considered by the UN to be no less indigenous than
those from North America, Australasia and Latin America (Kenrick and
Lewis, 2004). These peoples, especially if they are hunter-gatherers,
currently face pressures similar to their counterparts elsewhere to give up
their lands for agriculture, resource extraction and ‘national parks’ within a
largely European postcolonial order (Woodburn, 2001).
While a peoples’ experience of European expansion upon their territories
appears to be a major factor in the UN definition of indigenous peoples,
 The sociology of indigenous peoples’ rights 171
much clearly depends on what happened to them over the centuries of
European domination. Miller (2003) has drawn attention to the numerous
unrecognised indigenes that have been partly absorbed into dominant social
groupings or significantly changed through acculturation, intermarriage and
violence. Peoples that have been moved off territories and can no longer
claim special relationships to land or cultural institutions would also appear
to be only partly encompassed in the UN definition. This debate on who
exactly is indigenous is likely to continue, especially in view of the United
Nations Draft Declaration on the Rights of Indigenous Peoples currently
under consideration.

The treatment of indigenous populations

The discussions over indigenous peoples’ rights have assumed more urgency
in the light of the desperate social, political and economic condition of the
vast majority of the world’s estimated 250 million indigenous peoples. This
has been chronicled at the UN, by independent human rights researchers
and most articulately by indigenous peoples themselves. Regardless of
whether they are in wealthy states like Canada, the USA and Australia or poor
‘Third World’ countries in South America and Africa, many of the stories are
the same. A recent study highlights ‘the extraordinary similarity of experi-
ences of Indigenous Peoples across the Commonwealth – between those in
First World Countries and those in Third World countries’ (Commonwealth
Policy Studies Unit, 2003: 3).
The processes of social transformation from relatively independent and
healthy societies to peoples treated as squatters, currently on the verge of
cultural and physical extinction, have variously involved military conquest,
forced relocation, the spread of disease, land theft and fraud. The effects of
these actions were and are often genocidal, with numerous tribal groups
dying out completely. Even those that have taken sober and cautious looks
at the demographic changes have used the term ‘holocaust’ to describe
indigenous depopulation in North America (Jaffe, 1992: 109; Thornton,
2002: 70).
In many parts of the world, the crises in indigenous societies were deepened
by cultural change instigated by assimilation programmes in which children
were inducted into European schooling systems, and in many cases, such as
the notorious boarding schools in North America (see Assembly of First
Nations, 1994; Adams, 1995; Miller, 1996) and Australia (see HREOC,
1997; Manne, 1998; Haebich, 2001), forcibly separated from their families.
For example, in Australia at the turn of the twentieth century there was a
growing population of mixed-descent children, specifically children born to
aboriginal mothers usually with Anglo-Celtic or sometimes Chinese or
Pacific Islander fathers. Almost invariably the Australian settlers thought of
these mixed-descent children, and of the descendants of these children –
whom they labelled, almost zoologically, as ‘half-castes’ or ‘crossbreeds’, as
172 Meaning, interpretation and rights
‘quadroons’ and ‘octoroons’ – as a growing, fearful social problem (Manne,
1998: 2). In the late 1920s and early 1930s, Australian policy-makers began
to develop forced removal and relocation policies based on the science of
eugenics that aimed to solve this ‘half-caste problem’. The programmes were
designed to ‘breed out the colour’ and subsequently became known as ‘the
policy of biological assimilation or absorption’ (Haebich, 2001: 19). In
1997 the Australian Human Rights and Equal Opportunities Commission
published its groundbreaking report Bringing Them Home, which docu-
mented the full extent of the forced child removal policies, concluding that
between one in ten and one in three indigenous children were removed from
their families and that this constituted an act of genocide (see HREOC,
1997). The tens of thousands of forcibly removed indigenous children
became known as the ‘stolen generations’.2
In the USA and Canada great inducements were offered for conversion to
Christianity, while indigenous religious practices such as shamanism, the
potlatch, peyote use, the ghost dance and the sun dance were either sup-
pressed, banned or both during the most intense periods of assimilation
(Niezen, 2000: 128–49).3 In some areas of the USA, the government’s Indian
Health Service practised forcible sterilization on Native Americans as late
as the 1970s (England, 2004). The same occurred in parts of Australia
(Robertson, 2002), and there is persuasive evidence that such practices are
continuing in Peru (Kleiss, 2004; see also United Nations, 1999). Finally,
with indigenous economies wrecked and land confiscated, many indigenous
peoples have had little choice but to seek livelihoods through the wage econ-
omy, social welfare and, in many areas of the world, crime, prostitution and
other high-risk activities within the dominant society. The results of all these
processes can readily be seen in the high rates of alcoholism, suicide, solvent
abuse and non-traditional drug abuse, as well as physical illnesses, in
indigenous communities around the world (see, for example, Bourne, 2003:
34–41; Samson, 2004; Ferreira, 2005).
The experiences of the Innu of the Labrador–Quebec peninsula reflect
these patterns very closely. According to numerous reports of European
observers, when the Innu were largely independent of external control, they
were a healthy and vibrant nomadic hunting people. Near the end of the
nineteenth century, ethnologist Lucien Turner (1979: 106) remarked of
the Innu at Fort Chimo: ‘both sexes attain great age . . . in some cases cer-
tainly living over 70 years. Some assert that they were well advanced in years
before the white man came in 1827.’ Other reports spoke of a hardy,
agile, resourceful people. The Finnish geographer Väino Tanner (1947: 663)
remarked that ‘the birth rate is said to be good and the natural increase in
their numbers is satisfactory’. Upon closer observation, Tanner (1947: 599)
described the Innu as ‘being healthy, families are large, the children fit and
jolly . . . never did I see the brand of “fire water” on the face of a Montagnais
[southerly Innu]’.
With alcoholism affecting the majority of adults in Innu villages in
 The sociology of indigenous peoples’ rights 173
Labrador, suicide rates among the highest in the world and a youth gas
sniffing epidemic (Samson, 2003: 221–95; Omni Television, 2004), Tanner
would not be quite so cheerful were he to visit the Innu today. Crucially,
in the intervening time, the Innu have been removed from the land and
settled into government villages. Their children have been forced into Euro-
Canadian schools run by the Roman Catholic Church, and priests deliber-
ately set out to destroy Innu religious practices. Numerous Innu became
victims of paedophile clergy and teachers, and they have faced the additional
humiliation of having their land appropriated for industrial mega-projects.
Assimilation policies have been little short of catastrophic across vast
swathes of the globe. At present the indigenous peoples of Australia
constitute an underclass with the highest incidences of disease and respira-
tory infections and the lowest life expectancy in the general population
(Australian Bureau of Statistics, 2002). According to the Australian Bureau
of Statistics (ABS), in 1998–2000 the death rates of indigenous people
between the ages of 30 and 64 years were around seven times the rates for
the total population in those age groups. Much of the difference between
aboriginal and total life expectancy had been attributed to the excessive
rates of infant death among indigenous peoples (ibid.). In 1998–2000, the
death rate for indigenous infants was around four times the rate in the
total population. Suicide is endemic in many aboriginal communities (Tatz,
1999), as is trachoma, an eye disease that has been eradicated in Africa.
Indigenous peoples also experience rates of arrest and imprisonment grossly
disproportionate to their numbers. In 1987 the Royal Commission into
Aboriginal Deaths in Custody found that aboriginal children represented
2.7 per cent of Western Australian young people, but over half of the youth
in prison were aboriginal (RCIADIC, 1991: 101). The Commission con-
cluded that the root cause of indigenous peoples’ structurally entrenched
social inequality was the dispossession of their lands and loss of autonomy
(RCIADIC, 1991: 256).
The story is much the same in Canada, where aboriginal peoples fair
worse on virtually every health measure than the overall population.
Although data are difficult to obtain because of the different legal and polit-
ical statuses of indigenous peoples in Canada, it has been estimated that
aboriginal life expectancy is between five and fourteen years shorter, suicide
is up to five times higher and both chronic and infectious diseases, as well as
social pathologies such as problem drinking, affect aboriginal peoples with
much greater frequency than other groups (Canadian Institute of Health
Information, 2004: 80–3). Under Canadian government definitions only
56.9 per cent of aboriginal homes were considered adequate shelter, only
a little over 40 per cent of these homes had piping to centralized water
treatment plants and many of these were required to boil water before
drinking (Health Canada, 2003: 65–6).4 As in Australia, aboriginal people
are also overrepresented in jails. Although only 2 per cent of the Canadian
population, they account for 17 per cent of custodial admissions. However,
174 Meaning, interpretation and rights
in some areas of Canada, such as Saskatchewan, where only 8 per cent of
the population, but 76 per cent of prison admissions, are aboriginal, the
overrepresentation is massive (Canadian Centre for Justice, 2001: 10).
These social pathology statistics for G8 countries are mirrored in much
poorer countries. For example, a recent New York Times report highlighted
the high suicide rates of Colombia’s indigenous peoples. In the general
population there were only 4.4 suicides per 100,000 people, while in the
indigenous communities the rate was as high as 500 (Forero, 2004).
Now that we have given a brief indication of the context for some of the
experiences of indigenous peoples that have led to calls for recognition of
particular rights, we now examine the conception of indigenous peoples
within sociology. This will serve as a general background from which to
discuss the various contributions to the sociology of human rights from the
standpoint of indigenous peoples’ experience.

Founding fathers and indigenous peoples

The creation of social scientific disciplines in the nineteenth century coincided
with industrialisation and the consolidation of European colonialism. These
deeply entwined processes brought non-European peoples and societies into
focus as objects of labour exploitation and academic study. Early sociological
theory conceived of non-Europeans principally as illustrations to throw into
relief the uniqueness of the modern world. This emphasis in sociological
research and theorizing on understanding modern society, characterised
by wage labour, factory production, cities and the movement of capital,
meant that there was a need to understand peoples far removed from the
cataclysmic changes within civilization itself principally as yardsticks to
indicate the pace and character of European progress.
The idea of progress situated indigenous peoples in social configurations
that Europeans had already transcended. Karl Marx, Max Weber and Émile
Durkheim all evoked linear visions of time in which human society moved
gradually and inevitably towards the contours of what they saw in Europe.
The indigenous and the tribal were mere vistas into the European and,
indeed, the human past. It was to these concerns that the early anthropolo-
gists such as Louis Henry Morgan and Edward Tylor, armed with their own
evolutionary assumptions, applied themselves. Both equated evolution with
progress, and saw European civilization as the pinnacle towards which other
cultures were inexorably climbing (Bidney, 1996: 209–10).
Sociologists made very similar assumptions. Marx sketched out a number
of historical epochs, all being materially determined by forms of ownership.
Hence the earliest stage was the ‘tribal’, in which patriarchy was prominent,
subsistence was achieved through hunting and gathering and only crude
divisions of labour were apparent. Property was held in common. As is well
known, Marx (1978a: 151–5) then conceives of society as moving through
the communal, feudal and capitalist epochs of history. The most recent
 The sociology of indigenous peoples’ rights 175
epoch in Marx’s chronology, capitalism, was where Europe found itself at
the time. To help to substantiate this evolutionary schema, Marx’s colleague
Friedrich Engels used Morgan’s ethnological study of the Iroquois to
demonstrate that American Indians’ property and familial relations not
only differed from those of Europeans, but represented prior stages in the
development of society (see Leacock, 1981).
Since Marx and his followers have been convinced of the linear movements
of history from the tribal (‘primitive communism’) to the feudal, capitalist,
socialist and then to communism, the elimination of indigenous distinctive-
ness and cultural heterogeneity in general was seen as inevitable, even desir-
able. Marx supported the colonial endeavours of European powers for
this reason. Although he commented on the British atrocities in destroying
Indian culture and plundering the continent, Marx (1978b) believed that the
net effect of the industry, commerce and political unification that the
‘advanced peoples’ had imposed on India would be regenerating. That is,
colonialism would pave the way for a new collective social order. Even in
more recent times, Marxists have promoted the globalization of industry
and Western technology along with the destruction of tribal bonds in the
Third World because these were a means of hastening the overthrow of
capitalism (Latouche, 1996: x). At a more conceptual level the positivist and
materialist biases of Marxism have been at variance with American Indian
land, customs and spirituality (Churchill, 1983).
In Marxist states such as Soviet Russia the push for industrialization led to
an aggressive programme of resource extraction in areas of Siberia inhabited
by indigenous peoples. The Soviets perceived the indigenous hunters and
herders of these regions as culturally backward and inferior to both workers
and peasants. Some were driven off the land and had their reindeer confis-
cated, and eventually some were introduced to industry and agriculture
(Slezkine, 1994: 266–71). In the steppe regions of Inner Asia, the Soviet
Union pushed through forced sedentarization and collectivized agricultural
production among the indigenous mobile pastoralists, causing massive
dislocation and hunger. Similar policies in the Chinese regions of Inner
Mongolia resulted in widespread famine in the 1960s (Humphrey and
Sneath, 1999: 19). More recently in Nicaragua under the Sandinistas (who
themselves were threatened by US provocation and intervention), indigen-
ous peoples became enemies of the state. The Miskitu Indians of the Atlantic
coast were at war with the Sandinistas, who were engaged in a mestizo
nation-building project. This ignored Miskitu difference and enforced a kind
of mestizo state-centred socialism, the promotion of literacy through the
Spanish language and other culturally homogenizing programmes. In reac-
tion against this, the Miskitu organized against the Sandinistas and some
joined the right-wing Contras (Hale, 1994: 214–16).
In Max Weber’s body of sociological writings, we find the same assumption
that European ideas, practices and institutions symbolize temporally more
recent societal patterns. In The Protestant Ethic and the Spirit of Capitalism,
176 Meaning, interpretation and rights
Weber begins by making the observation that only in the West do we
find ‘rationality’. In ‘Western civilization alone cultural phenomena have
appeared which have universal significance and value’ (Weber, 1976: 13).
Weber locates the highest development of rationalism in Western bureau-
cratic institutions and political authority structures. In general, Weber sees
human political authority moving from charismatic domination to bureau-
cratic leadership. Charisma is seen principally, although not exclusively, as a
property of non-Western societies under ‘primitive communism’, Western
societies of the past or Western societies in ‘unusual circumstances’ or under
‘great excitement’ (Weber, 1978: 234–6, 247).
If, as Weber suggests, human society moves in this way, then there is
little scope for action to preserve the differences and protect the rights of
indigenous (and other non-European) peoples. The powerful compulsion of
bureaucracies and the rigid rules and regulations that govern the acquisition
of wealth anticipate a kind of globalisation of rationality in which all will be
behind the bars of the famous ‘iron cage’. Like Marx, Weber’s (1976: 181)
logic strongly implies that global uniformity is inevitable. Puritan asceticism
sought to ‘remodel the world and work out its ideals in the world’. Such a
conclusion generates little enthusiasm for examining indigenous peoples’
rights. Why concern ourselves with the rights of peoples whose uniqueness
will only disappear as all become imprisoned by rationalism and bureaucracy
within nation states?
In contrast to Marx and Weber, Durkheim offers some insights into ways
of life that have been displaced by modernity. Durkheim placed much
emphasis on the collective nature of human morality, identity and even
mental states, and in examining these phenomena he drew on illustrations
from both European and non-European societies. However, Durkheim
believed that he was witnessing a certain weakening of collective bonds as a
result of the rise of individualism, the transition from agrarian to industrial
economies and refinements in the division of labour. This was creating
anomie, individual pathology and, most dramatically, suicide. In both Div-
ision of Labor in Society (1964) and Suicide (1951), Durkheim portrayed
Western society as in a state of flux occasioned by greater refinements of the
division of labour, economic growth and the centralization of authority.
This naturally displaced many people, who, in this context, lost their social
moorings and became anomic. With modernization also came a loss of
social regulation, and this multiplied the possibilities of social conflict. With
the widespread evidence of the breakdown of indigenous societies in the face
of changes relating to ‘modernization’, Durkheim accurately describes the
circumstances in which many indigenous peoples have found themselves.
However, because he views change as a politically neutral evolutionary pro-
cess within societies, Durkheim ignores the purposeful transformations by
which colonial powers were able to impose modernization in indigenous
territories.
Perhaps as a consequence of these kinds of depictions of indigenous
 The sociology of indigenous peoples’ rights 177
peoples in classical sociological theory, discussions of indigenous peoples
in sociology have been scarce.5 In US sociology, for example, American
Indians have often been conceived as members of historical communities,
rather than as contemporary peoples (Thornton and Grasnick, 1980: 2–3).6
In US sociology textbooks, American Indians are often depicted as simply
one, albeit unfortunate, minority group, caught up within a wider metro-
politan culture (see Macionis, 2004: 283–4). Typically, only a few brief
pages are devoted to them, and this does not include any discussion of their
rights either within the USA or in the international arena. In British texts
indigenous peoples are almost never mentioned. Anthony Giddens (2001:
73) is the only sociologist to mention indigenous peoples in a major British
textbook, but he does so only with reference to the exploitation of their
intellectual property. He includes no discussion of the history of indigenous
dispossession and exploitation under colonialism and its legacy, and no
discussion of indigenous human rights claims.

Foundationalism, social constructionism and the sociology of

human rights
If we turn to rights themselves, we also find that the role of sociology in
relation to indigenous peoples is ambivalent. Turner and Rojek (2001: 109)
have argued that until relatively recently, sociology largely confined its
examination of rights to the realm of citizenship. This was, according to
Turner, fuelled by a strong scepticism about ‘universalisms’ in favour of
cultural relativism and social constructionism. Turner (1993, 2001), how-
ever, suggests that the concept of citizenship has been closely linked with the
modern nation state, and argues that this political form has been the central
coordinator of imperialism and globalization. In doing so, it has acted
oppressively towards groups such as migrant workers, refugees and indigen-
ous peoples who either cut across states or are simply disadvantageously
incorporated within them. While the state has certainly been at the centre of
rights claims and has held a virtual monopoly on the conferment of rights,
it has become increasingly clear that a full consideration of rights requires
us to go beyond mere state citizenship. As globalization has created prob-
lems that are not wholly internal to nation states, so the concept of citizen-
ship rights must be extended to engage with that of universal human rights.
Turner and Rojek (2001: 119) write: ‘The problem with sociology’s
reluctance to talk about human rights is that human rights have become a
powerful institution and play a major role in political mediation of social
conflict.’ Turner (1993: 502) further argues that the concept of human rights
can be understood sociologically by the widespread observation that there is
a need to protect vulnerable human beings by establishing rights-promoting
institutions.
Yet Turner’s analysis goes further than mere explanation. He argues that
without some universal moral grounds it is impossible to talk about justice:
178 Meaning, interpretation and rights
‘there has to be some foundation of a universalistic character in order for
such discussions about justice to take place. Otherwise we are left with a
mere talking shop of difference’ (Turner and Rojek, 2001: 112). He deploys
sociological theory to explore the moral basis of a universalist doctrine of
human rights and proposes that a shared experience of bodily vulnerability
provides the common ground. As he asserts, ‘human frailty is a universal
experience of human existence’ (ibid.: 110).
Taking issue with Turner’s foundationalist approach, Waters (1996)
suggests that universal human rights should simply be regarded as a socially
constructed phenomena, the product of a certain historical and social con-
text (that is, Western society after the Second World War). Such an
approach, he suggests, would view the institutionalization of human rights
as little more than the product of a balance of power between political
interests. ‘Universal’ values themselves can become the currency of political
manipulation, selectively invoked and enforced, and deployed to reinforce
the power of not so vulnerable groups.
Relatively recent developments in Australia may be used to illustrate these
ideas. In the Australian context, the domestic institutionalization of inter-
national human rights standards as they pertain to indigenous peoples is
perhaps best understood with reference to both ideals (a desire to protect
the vulnerable) and political interests. In 1992 the High Court of Australia
decided in the Mabo case that to deny indigenous rights to land would
be unjust and contrary to contemporary international human rights stand-
ards, especially the principle of racial equality. The court was aware, in
Turner and Rojek’s (2001: 124) terms, of the ‘vulnerability’ of dispossessed
indigenous people and did not seek to worsen their plight by flouting the
international moral code that prohibits racial discrimination. The Mabo
ruling challenged the theory of terra nullius, and further decreed that the
notion that indigenous inhabitants of a ‘settled’ colony had no proprietary
interests in land depended on a ‘discriminatory denigration of indigenous
inhabitants, their social organization and customs’ and that such ‘an
unjust and discriminatory doctrine’ could be no longer accepted (Reynolds,
1996: 2). In essence, Mabo gave Aborigines rights to ancestral lands not
already ceded or fairly compensated.
When the Australian government responded to the landmark case the
interests of vulnerable indigenous groups were largely ignored in favour of
powerful commercial interests (see Short, 2003a). The net result was
legalisation that sought to limit indigenous rights behind a veneer of
agrarian reform. The mining industry in particular was threatened by
the ruling that made some of its existing land titles of questionable
validity because no compensation had been paid to resident aboriginal
groups at the time of purchase, and this also threatened their hitherto
unbridled claims for development of vacant ‘Crown land’ (Short, 2003a).
While the government talked in terms of enshrining and protecting indigen-
ous rights to land, the legislation made sure aboriginal groups could not veto
 The sociology of indigenous peoples’ rights 179
development on their land and defined an extremely restrictive native title
claims procedure.
Thus, as Freeman (2002: 85) contends:

The institutionalisation of human rights may . . . lead, not to their more

secure protection but to their protection in a form that is less threaten-
ing to the existing system of power. The sociological point is not that
human rights should never be institutionalised, but, rather, that insti-
tutionalisation is a social process, involving power, and that it should be
analysed and not assumed to be beneficial.

Freeman’s ‘sociological point’ can be further illustrated by the example of

Canada, where the notorious ‘extinguishment’ clause has become insti-
tutionalised within land claims agreements. Recent internal and international
criticism, however, has led only to a more restrictive and discriminatory
government policy that favours the state and developers. Aboriginal groups
that have not signed land treaties with Canada, and therefore according to
British precedent and Canadian law have underlying ‘aboriginal title’ to
land, can only have rights appertaining to that title by signing an agreement
that extinguishes their title. Canada’s reaction to the numerous objections
to this has been to omit the word ‘extinguishment’ in new land claims
agreements. However, in return the aboriginal party must now accept that
the agreement itself defines the totality of their rights and that they never
assert their rights granted from any previous treaties or from any violations
of aboriginal title that may have occurred in the past. Under this arrange-
ment, the Canadian government is also indemnified against all violations of
aboriginal or treaty rights in perpetuity. The terms of such agreements limit
the exercise of aboriginal rights to such an extent that they have in essence
extinguished aboriginal title to traditional territories (see Orkin, 2003; Union
of British Columbia Indian Chiefs, 2004).
These examples show that indigenous rights (or their absence) are products
of the manoeuvring of states, responding to internal and international pres-
sures, as well as seeking to reconcile these with the demands of constituents
(and in the cases of Australia and Canada, with the wishes of dominant settler
populations largely unsympathetic to indigenous grievances). The fact that
‘rights’ are not simply givens, but products of social and political creation and
manipulation, is underlined by Wilson’s (1997: 3–4) argument that social
scientists should be primarily concerned with analysing rights as socially
constructed phenomena. He writes: ‘the intellectual efforts of those seeking
to develop a framework for understanding the social life of rights would be
better directed not towards foreclosing their ontological status, but instead
by exploring their meaning and use. What is needed are more detailed stud-
ies of human rights according to the actions and intentions of social actors,
within wider historical constraints of institutionalized power’ (ibid.). In
short, sociological analysis of rights can go beyond the formal, legalistic and
180 Meaning, interpretation and rights
rhetorical dimensions of such rights, where, as Wilson (2001: xvii) points
out, they will always be a ‘good thing’. Thus, while Turner’s idea of human
rights as a universalistic means of protecting the vulnerable is important, it
offers an insufficiently nuanced understanding of how such rights are
invented and subverted, often by the state itself. As our Australian and
Canadian examples show, the extension of indigenous rights may be a means
of restricting what are already inferior rights. The task of ‘claiming’ the only
means by which indigenous peoples have been able to protect their lands and
ways of life is all the more difficult since engagement with a host of culturally
alien and often divisive procedures and institutions is necessary.7

Indigenous scholarship on the rights of indigenous peoples

Indigenous thinkers have been prominent in adopting broad sociological
approaches to the analysis of their rights. For example, Mohawk scholar
Taiaiake Alfred has highlighted the continuation of a colonial relationship
within liberal ‘multicultural’ states despite the institutionalisation of indig-
enous rights to land and other ‘recognition’ initiatives. Alfred (1999: 58)
suggests that ‘rights’ granted to aboriginal peoples by states should be
viewed as part of colonialism and not a remedy for its effects, since such
‘rights’ are invariably created, controlled and limited by states themselves.
Furthermore, because many of the rights granted are simply those taken
away by colonists and states, Alfred (ibid.) questions how meaningful
indigenous rights are:

given Canada’s shameful history, defining Aboriginal rights in terms of,

for example, a right to fish for food and traditional purposes is better
than nothing. But to what extent does that state-regulated ‘right’ to
food-fish represent justice for people who have been fishing on their
rivers and seas since time began?

He adds that to ‘frame the struggle to achieve justice in terms of indigenous

“claims” against the state is implicitly to accept the fiction of state sover-
eignty. . . . Arguing for rights within that framework only reinforces the
state’s anti-historic claim to sovereignty by contract’ (ibid.).
A sociological imagination is evident in the work of many indigenous
scholars, who seek to explain historical and contemporary indigenous/settler
relations by demonstrating how the contemporary nation state operates
according to the same colonial political agenda as former colonial powers.
Writers such as Kevin Gilbert, Ward Churchill and Taiaiake Alfred, to name
but a few, have shifted attention towards explanations that emphasise both
the historical context and the negative impact of imposed colonial legal,
political and cultural structures. For example, Alfred (1999: 48) invokes a
Foucauldian understanding of state power, which highlights its repressive
capacity:
 The sociology of indigenous peoples’ rights 181
A critique of state power that sees oppression as an inevitable function
of the state, even when constrained by a constitutionally defined social-
political contract, should have special resonance for indigenous people,
since their nations were never party to any contract and yet have been
forced to operate within a framework that presupposes the legitimacy of
state sovereignty over them.

While he is also interested in the imposition of settler state sovereignty, the

works of aboriginal writer Kevin Gilbert (1977: 3, 238) tend to focus more
on the destructive force of colonial history and the impact of the state’s
emphasis on ‘material progress’ in Australia:

For two hundred years we have been subjected to death, abuse and
denial of dignity and basic human rights by the white usurpers of our
land. Today we are the products of the ravages of white settlement. . . .
As Aborigines began to sicken physically and psychologically, they were
hit by the full blight of the alien way of thinking. They were hit by the
intolerance and uncomprehending barbarism of a people intent on pro-
gress in material terms, a people who never credited that there could be
cathedrals of the spirit as well as of stone.

Indigenous scholars have deepened the analysis of rights by critically analys-

ing law itself. While reviewing state/indigenous legal relations, many have
been at pains to show not only that the law is the political instrument of
their colonizers, but that it is a highly fluid set of practices, used almost
exclusively as an instrument of domination. Thus, elements of federal
Indian law such as treaties, many of which were instituted in order to protect
American Indian peoples’ rights, have nearly all been broken. Thus there is
little correspondence between what the law says in relation to indigenous
peoples and what it does. This applies to both the USA and Canada (Deloria,
1985; Morris, 1992; Churchill, 1999; Orkin, 2003).
While alien laws were imposed, indigenous economies were being des-
troyed by colonization and settlement. The industrially driven material
prosperity created by European usurpation of indigenous territories in
Australia and North America provided indigenous peoples only with the
dubious benefits of culturally destructive individualized wage labour and
welfare dependency. This aspect of the indigenous/settler state relationship
has been the focus of sociological analysis in the works of many indig-
enous scholars, such as Vizenor (1984), Deloria (1985), Gilbert (1994) and
Mudrooroo (1995), as well as the subject of a great deal of Native American
creative art and literature. Australian aboriginal writer Mudrooroo (1995:
87) concludes: ‘colonial expansion is a process which continues until its
power is total, by a combination of coercion and assimilation. An integral
part of this colonisation is welfare, which only perpetuates the subjuga-
tion of the indigenous people . . . and leads to assimilation.’ Despite the
182 Meaning, interpretation and rights
destructive effects of colonialism, many indigenous writers also emphasize
the incredible resilience of indigenous cultural forms and commitments to
community. This is evident in indigenous cultural revitalization (Nagel,
1996), articulated in the profusion of Native American literature (see
Weaver, 1997) and evident in the autobiographies of many Native Americans
(see Momaday, 1976; Vizenor and Lee, 1999). This cultural continuity and
claim to various realms of autonomy is clearly vital to the current movement
of indigenous peoples to claim rights.

Liberal scholarship and the rights of indigenous peoples

The extension and exercise of indigenous peoples’ rights runs up against not
only powerful states and corporations, but large sections of the academic
and public policy communities specializing in the analysis of human and
other rights. In mainstream circles, liberalism has become the dominant
philosophical orientation within which the rights of indigenous peoples have
been conceptualised. The contemporary expression of this in both politics
and academia has roots in the splicing together of nineteenth-century utili-
tarianism, a doctrine that places primacy on private property, permanent
representative democracy and individual rights, with classical economics, a
body of thought that reified and naturalized the self-regulating market
economy.
In many ways, these ideas were instrumental in both European colonial
expansion and the founding of settler societies in North America (Rogin,
1987: 135). Building on earlier writings by Hobbes and Locke, philo-
sophers in the widely Benthamite tradition presumed an egoistic human
nature. Based on this a priori assumption, they advanced a prescription that
law and society ought to be based on Bentham’s famous felicific calculus,
the principle of ‘the greatest happiness for the greatest number’. If laws
were predicated on this principle, there would eventually be a natural
identity of interests in society (see Halévy, 1955). With this as a guiding
framework, indigenous peoples’ rights have primarily been defined as a
form of minority interest, subject to the higher moral weight of Bentham’s
‘greatest number’.
Following on from these origins, conventional liberal-democratic theory
deals with all social groups that have become ‘minorities’ as sets of ‘out-
voted individuals’ (Freeman, 1995: 25). As such, they are only guaranteed
individual rights, which provide them with the opportunity to become
members of the majority on occasions when their interests coincide. Thus,
under conventional liberal thinking, indigenous peoples, as a ‘minority’,
would simply be conferred the same rights as other individual citizens of
the settler state. In recent times, however, some prominent liberal rights
theorists have sought to broaden liberal theory in this regard, arguing
that minorities should be protected collectively via what they term ‘group
rights’, since an individual is likely to suffer if their way of life or ethnic
 The sociology of indigenous peoples’ rights 183
group is neglected, disparaged, discriminated against or misrecognized by
wider society (see Freeman, 1995: 25; Kymlicka, 1995; Taylor, 1995: 236).
As Taylor (1995) observes, social recognition is central to an individual’s
identity and well-being and misrecognition can seriously damage both.
Kymlicka (1995) has argued that individuals are often discriminated against
by the wider society not merely as individuals but as members of a cultural
group. Consequently, the well-being of individual group members may
require that their cultural practices be protected from the wider society,
as other groups may be hostile to such practices. Thus, despite the collec-
tive nature of such measures, the foundational justification is intrinsically
individualistic.
It is easy to understand why some writers believe that the spectre of
colonialism lurks inside liberalism. Indeed, there is a forceful argument,
put forward by many indigenous writers and postcolonial theorists, such
as Bhikhu Parekh, which asserts that modern liberalism is founded on an
assertion of cultural superiority, because Western value systems are afforded
normative priority. As Parekh (1998) observes, liberal notions of justice and
fairness are understood via the assertion of universalized values, such as
individualism, in contrast to the supposedly backward, primitive societies
that were ‘enlightened’ by colonialism. Consistent with the cultural evo-
lutionism that has been a pervasive feature of Western social scientific
thought for several centuries, indigenous and other non-European societies
were simply regarded as prior versions of Europe. In liberal theory, their
distinct laws and traditions have no status whatsoever. Signifying the under-
lying belief that non-Western values are inferior, Kymlicka (1995: 153)
argues that cultural protection should only be available to indigenous
nations ‘if, and in so far as, they are themselves governed by liberal
principles’.
In liberal theory, indigenous peoples become recipients of rights conferred
by policy-makers acting in accordance with universalized Western values.
Therefore, even those liberal writers who might be considered champions of
minorities, like Taylor and Kymlicka, skip over the ‘first step in questioning
the sovereignty of the authoritative traditions and institutions they serve to
legitimate’ (Tully, 1995: 53; Samson, 1999). Such writers, while recognizing
the importance of culture to indigenous peoples, talk in terms of participa-
tion within liberal institutions, and their solutions to collective disadvantage
are framed in a liberal discourse of rights that is ultimately the product of
force. Kymlicka, for example, concedes that indigenous peoples’ special
relationship to land is significant enough to justify recognition via the notion
of ‘group rights’ and ‘differentiated citizenship’, but he exposes the colonial
underpinnings of such liberalism by denying indigenous peoples full political
autonomy. By presuming the legitimacy of the settler state’s jurisdiction over
indigenous nations, such an approach presupposes exactly what is in
question (see Tully, 2000: 55).
Indigenous peoples at the national and international level strongly resist
184 Meaning, interpretation and rights
classification as ‘minorities’. They emphasize their uniqueness both culturally
and via the issue of ‘consent’, which is perhaps the most distinctive aspect of
indigenous/settler state relations. While voluntary immigrant minorities have
chosen to become citizens of European diaspora nations such as those in the
former British Empire, many indigenous peoples have never willingly ceded
their lands or political autonomy. Indigenous peoples hold distinct moral
claims as dispossessed first nations, whose ‘forebears will usually have been
massacred or enslaved by settlers, or at the very least cheated out of their
land, to which they will often retain a . . . spiritual attachment’ (Robertson,
1999: 183).
It is here that the liberal politics of ‘recognition’ fail to accord indigenous
peoples the equality espoused. The distinct moral claims of indigenous
peoples as peoples are frequently trivialised by liberal ‘recognition’ theorists
(see Kymlicka, 1991, 1995, 2000; Kukathus, 1992; Taylor, 1995) when they
combine discussion of indigenous peoples with minorities and largely focus
on internal citizenship-based ‘solutions’ to ‘indigenous problems’. Coinci-
dentally, this is exactly the stance of many states with regard to indigenous
peoples’ rights.
Citizenship is often associated with nation building and state legitimacy
and as such is an unhelpful concept for those ‘citizens’ who question the
legitimacy of an imposed nation state. As Tully (2000: 39) points out, and
numerous indigenous scholars have articulated this at some length, provid-
ing ‘recognition’ to indigenous peoples through the granting of citizenship
rights is simply an element of internal colonialism. Human rights, however,
are extra-governmental and have traditionally been used to counteract the
repressive capacity of states (Turner, 1993). This is one of the reasons why
many indigenous peoples have accepted the United Nations Draft Declar-
ation on the Rights of Indigenous Peoples as an articulation of their rights,
as opposed to merely relying on the citizenship rights granted by states.8 For
indigenous peoples, recognition of the collective right to self-determination,
as proposed in articles 3 and 6 of the Draft Declaration, will offer a greater
degree of cultural protection than is attainable through pure individualism.
If adopted, this would contradict liberal positions, and, in being consistent
with the greater tendency among indigenous peoples to define themselves by
reference to the group and the environment, would permit a greater range of
cultural expression needed for the long-term survival of indigenous peoples
as distinct communities.

Conclusion
As the example of liberalism demonstrates, the dominant modes of analyses
of indigenous peoples rights do not question the legitimacy of the state
itself and assertions of sovereignty over indigenous peoples and their lands.
Such a critique would be fundamental to a critical sociological formulation
of indigenous peoples’ rights, and accords with many of the writings of
 The sociology of indigenous peoples’ rights 185
indigenous scholars. A major area in which sociology can contribute to an
understanding of the broader issues surrounding the rights of indigenous
peoples is in its analysis of the role of the state, the histories by which states
came to create and assume authority over indigenous peoples and the
current social and political conflicts over the conceptualization of rights
themselves.
As former President of the UN Human Rights Commission and of Ireland,
Mary Robinson (2004) recently remarked, the expertise and research of
sociologists can play a vital role in making states responsible and chal-
lenging market fundamentalism. Human and other rights are fast becoming
the tools for making states accountable for the ethical treatment of all
populations. With pressing issues related to indigenous health, welfare and
cultural survival, a critical public sociology could actually operate as Mary
Robinson suggested. As long as it refuses to collaborate in the political
fiction that indigenous rights are solely state citizenship rights and recog-
nizes indigenous struggles to maintain cultural continuity, sociology could
help to challenge the current patterns of state and market dominance and
question the fatalistic notions that cultural distinctiveness is a thing of the
past.

Notes
1 For more extended commentaries on conceptions of rights as they were played
out between Europeans and indigenous peoples, see the extensive discussions
in Deloria (1985), Williams (1990), Tully (1995), Pagden (1995) and Keal
(2003).
2 The ‘stolen generations’ were the focus of the 2002 Oscar-nominated film Rabbit
Proof Fence.
3 As Wunder (1994: 33) has noted, such policies were direct violations of the
freedom of religion guaranteed by the Bill of Rights in the US Constitution.
4 With widespread substandard housing for aboriginal peoples in Canada, lawsuits
are now being brought against the federal government for violating the Constitu-
tion, which clearly spells out the government’s responsibilities for aboriginal
housing (Janzen, 2004).
5 This is not to say that classical sociological theory could not be valuable for
understanding particular social processes affecting indigenous peoples. Marxist
understandings of the expansion of capitalism could be used in interpreting
resource extraction policies on indigenous lands. Weber’s ideas of bureaucracy
could also be important in looking at state imposed land claims policies.
6 In a recent empirical study of the phenomenon of military toxic waste dumping
close to Indian reservations in the USA, Hooks and Smith (2004) note the
limited sociological literature on Native Americans and environmental injustice.
Environmental sociology, they argue, focuses on class and race dynamics in
urban areas, with capitalism, rather than the state, as the main causal force. Some
sociologists have, of course, written about American Indians in more depth.
Exemplars include Thornton (1987), Cornell (1988) and Nagel (1996).
7 Morgan (2004) has documented this predicament in the international arena. In
the Canadian national context studies by Brody (1981), Samson (2001, 2003) and
Nadasdy (2003) show how aboriginal peoples must configure themselves into
186 Meaning, interpretation and rights
culturally alien political forms and engage in processes that undermine group
solidarity in order to claim rights. This predicament is particularly acute
for northern hunting peoples, whose very survival has depended on consensus,
communitarianism and the avoidance of open conflict.
8 For an overview and discussion of these rights, see Pritchard (1998).
Part IV

The clash of rights

The final part of this book deals less with a specific approach than a com-
mon problem: the clash of rights. The three chapters look respectively at
the rights of prisoners, the rights of mental health patients and the phenom-
enon of hate speech; all cases in which civil rights and freedoms have been
contested. Chapter 10 considers the justifications that have been given for
denying the civil rights of offenders by imprisonment. Philosophical justifi-
cations range from utilitarian arguments based on the claimed reduction of
future crime, to the categorical imperative of retribution. Sociological pur-
chase on such arguments includes the Marxist view of penal systems as the
protection of class interest, Durkheimian views of punishment as the asser-
tion of shared values and a Weberian perspective informed by the oppressive
nature of authority, the iron cage of rationality and bureaucracy that will
imprison us all. Analysis of the micro-management exerted by all systems of
authority has been most fully explored by Foucault, with particular atten-
tion to marginal groups such as prisoners, the ‘mad’ and homosexuals.
Conversly, postmodern theory inspired by Levinas offers an approach to
rights based on unconditional responsibility towards the ‘other’: a radical
justice of alterity. The feminist critique of false universals can also be viewed
in this light, as can proposals for a feminist jurisprudence that challenges
claims to gender neutral legal thought.
The main problem for sociological approaches to liberal penal policy, as
sketched out in Chapter 10, is that a focus on individual rights and responsi-
bilties ignores the social conditions producing criminality and is challenged
by the justice of alterity. This position condemns the demonisation of
offenders and embraces unconditional responsibility towards them, thus
highlighting the importance of human rights as a system of protection for
those beyond empathy. In contrast to these sentiments, the chapter high-
lights the continuing legacy of ‘civil death’ for prisoners, and the fact that
prisons themselves have operated as ‘lawless agencies’, with prisoners sub-
ject to the exclusive control of the authorities. The chapter then documents
some challenges to this arrangement, including the 1975 ruling that deemed
prisoners to fall under the purview of the European Convention on Human
Rights, and the eventual acknowledgement that prison authorities must act
188 The clash of rights
within legally defined powers. The impact on prisoners is argued to be slight
thus far, and their protections against damage or ill-treatment remain weak,
rendering them a classic case of vulnerability that requires protection but
evokes little sympathy: candidates for the ‘justice of alterity’. A movement is
now under way to ensure that the conditions of imprisonment conform to
human rights standards.
Chapter 11 considers the related case of human rights issues raised in the
treatment of mental disorder, reviewing the traditional denial of rights to
this group, their gradual but incomplete acquisition and the question of how
far denial of rights can itself induce mental disorder. The chapter draws on
the work of Foucault to chart changing characterisations of ‘madness’ from
the language of lunacy to the language of illness, the latter being accom-
panied by an expansion of recognised conditions such that mental disorder
today cannot be equated with eighteenth-century ideas of madness as
‘unreason’. The chapter then considers Marshall’s model of citizenship as
community membership, noting his acknowledgement that full equality had
not been achieved, his (often ignored) recognition of the role of struggle in
the accretion of rights and the role of social class in mediating their realis-
ation (or otherwise). This then provides the context for a consideration of
the traditional denial of liberty to those deemed mad, the ‘civil death’
referred to in Chapter 10, though here a majority of those detained had
committed no offence.
Despite the gradual change in the nature of treatment from forcible
restraint to moral management the denial of rights continued, though
with an accompanying tension between restraint and therapy. The mid-
nineteenth century saw the introduction of clear procedures for admission to
an institution that was a first step in clarifying the rights of those who
might be subject to detention, though the principle concern was to protect
the rights of the sane rather than assert the rights of the ‘mad’. Certification
was, of course, hugely stigmatising and the introduction of voluntary
admission in the twentieth century was thus a step forward. However,
the chapter goes on to document a number of perverse effects of the reduc-
tion of institutionalised treatment for mental disorder, including ‘trans-
institutionalisation’, whereby the patients rotate through different forms of
residential care or detention. Alternatively, where provision for alternative
care and treatment is inadequate we find the patient facing a series of prac-
tical difficulties, often rooted in class inequality. Thus, the chapter argues, a
vicious circle may be established whereby the lack of rights to adequate
provision exacerbates the original problem.
Chapter 12 addresses a fundamental liberal dilemma of how to weigh
freedom of expression against freedom from discrimination. This can also
be construed as another instance of universalism versus particularism;
how far should the universal freedom of expression be constrained in favour
of the protection of vulnerable minorities? The chapter starts by document-
ing New Labour’s specific concern with racially aggravated offences –
 The clash of rights 189
influenced to some degree by legislation and debate in the USA – and details
a gradual expansion of British law in this field, from race to religion, and
also to sexuality and disability. Through this account we see the dilemmas
surrounding such legislation: from the supporting arguments that crimes
motivated by hate cause damage to the victim beyond the crime itself, that
this additionally infects a wider community with fear and trauma, and
constitutes an assault on the dominant values of society; to the opposing
view that legislating against ‘hate’ crime is totalitarian, punishes thought
and bad values and treats equal crimes unequally. The chapter shows how
sociological evidence can be brought to bear in evaluating these positions.
Holocaust denial is then addressed as a special case of ‘hate speech’, which
has not yet been outlawed in Britain, though there is such legislation in a
number of other European countries – part of a movement against the trivi-
alisation of crimes against humanity. Some of the hesitation in Britain has
been related to the problem of offering singular protection to a particular
group in the context of an ethnically and religiously diverse society. The
issue of freedom of expression arises again in this debate, and to date,
incitement to racial hatred has been addressed only in the context of public
order. Again the chapter considers the problems of appropriate evidence, but
also outlines the difficulties of addressing holocaust denial under this legisla-
tion, and provides a background to current plans for a new offence of
incitement to religious hatred. Proposed legislation in this area is considered
to be especially relevant to Muslim groups, who fall outside of laws framed
in terms of racial hatred, and are potentially vulnerable to discrimination via
anti-terrorist measures. The fear of eroding freedom of expression has arisen
again in this context, and the symbolic force of legislation is a key factor in
attempts to strike a balance between fundamental freedoms and acceptable
norms of personal conduct.
10 Punishment, rights and justice
Eamonn Carrabine

The punishment of offenders raises profound questions over human rights,

civil liberties and social justice, as punishment will always involve the loss of
some basic rights and in the case of the death penalty extinguishes the most
fundamental: the right to life. A key issue that immediately arises is what
gives any social institution the moral right to inflict deliberate suffering on
wrong doers? There are a number of common and competing justifications,
which have come to revolve around the central problem of reconciling
punishment as state coercion alongside a valuing of individual autonomy.
The oldest known justification is a system of vengeance whereby revenge is
considered a social duty in societies governed by shame (Cantarella, 2001:
476), while the earliest documented response to checking the vindictive pas-
sions is also to be found in the classical Greek pantheon where the Erinyes
(or Furies in later Roman mythology) dispensed justice. However, this desire
for revenge did not go uncontested in the ancient world, as the emergence of
Stoicism and Christianity attacked the very legitimacy of the vindictive pas-
sions themselves on the basis that such emotions were both irrational and
wicked (Murphy, 2000: 132).
Modern philosophical thinking insists that punishment is justified, ‘as it
protects the freedom of individual citizens to go about their lives safe from
the threat of crime’ (Duff and Garland, 1994: 3), while individual rights are
advocated as essential defences against the abuse of power by the state. As
we see below this conceptualization underpins approaches to prisoners’
rights, and one of the aims of this chapter is to highlight how the different
sociological traditions expose the limits of liberal individualism in the penal
field. Critical criminologists have long been influenced by the sociological
scepticism towards rights and have argued that the struggle for civil liberties
simply results in ‘a reformism which strengthens the existing system’, while
maintaining that the ‘actual administration of criminal justice . . . bears very
little resemblance to its imaginary conception in law’ (Carlen, 1980: 20).
However, for some the radical commitment to debunking the pretensions of
equality before the law ought to be now within ‘a positive rights discourse
and agenda which recognises the determining contexts of social injustice’
(Scraton, 2002: 36). It is this agenda that this chapter supports by pointing
192 The clash of rights
to the importance of structural inequalities and the recognition of social
differences in what follows.

Moral philosophy and sceptical sociology

Liberal justifications of punishment

All legal systems presuppose some notion of ‘rights’ as belonging to citizens
in, at the very least, the negative sense of entitling them to behave in ways
that are not specifically prohibited. While the classical natural law tradition,
which was established in the earliest written legal codes of ancient Babylon,
Greek city states and imperial Rome, did grant positive powers to particular
classes of citizen, the greater concern was to identify ‘the duties owed by
citizens to God, the state, or society’ (Feldman, 2002: 21). Certainly, by the
Middle Ages the doctrine of the ‘Divine Right of Kings’ had become a highly
developed justification of feudal power based on the ‘laws of nature’: rules
that were ordained by God and sustained the absolutist sovereignty of
monarchies across Europe. The first appearance of ‘rights’ in their modern
usage emerged in England during the ‘Glorious Revolution’ and were
declared in the 1688 Bill of Rights. The Bill was philosophically grounded in
the writings of Thomas Hobbes, whose Leviathan was published in 1651
and was produced in the aftermath of civil war, and John Locke, whose Two
Treatises of Civil Government two years later defended the achievements of
the ‘Glorious Revolution’ and who was the first political thinker to suggest
that government should be by popular consent. Hobbes regarded it an abso-
lute duty of subjects to obey the sovereign, while Locke insisted the duty
was conditional on the ruler protecting ‘natural liberty’ and respecting
‘natural rights’. Not only did Locke’s ideas introduce the central tenets of
modern liberalism, they were also enthusiastically taken up by European
philosophers in the burgeoning Enlightenment.
By the middle of the eighteenth century, Jean-Jacques Rousseau’s proclam-
ation that ‘Man is born free, and everywhere he is in chains’ controversially
reversed the conventional Christian view that humans are intrinsically
corrupt and in need of religious salvation, while also suggesting the uni-
versal right to liberty. Yet it took the French and American revolutions to
give legal force to the political theory that declared ‘all men are created
equal’ (except, of course, slaves, women, indigenous populations, children,
etc.), while the Terror that subsequently engulfed France at the end of the
eighteenth century revealed that populist governments can disregard human
freedom as easily as absolutist monarchies. As revolutionaries replaced aris-
tocrats on the guillotine in the years after the French Declaration of the
Rights of Man and Citizen, the executions provided ‘a practical refutation
of its claim that “rights” were natural, let alone inalienable and sacred’
(Robertson, 2000: 5). It was Jeremy Bentham who mounted an influential
liberal attack on natural rights and the conservative disposition of natural
 Punishment, rights and justice 193
law that upheld unjust legal systems, which became a pivotal force driving
social reform in the nineteenth century. Moreover, his utilitarian form of
moral reasoning has provided one of the two major liberal justifications for
state punishment.
Utilitarian philosophy establishes what is good to do on the grounds of
social usefulness and it judges actions by their consequences. It stipulates
that ‘the good’ is human happiness, not some abstract metaphysical prop-
erty, like the idea of ‘natural rights’, which Bentham famously dismissed as
‘nonsense on stilts’ or an empirically unknowable object, as in the will of
God. Bentham’s objective was to establish the law on a rational basis, which
for him meant the facts of pleasure and pain rather than the vague fictions of
natural rights. In this context, the utilitarian justification of punishment is
that the wrong experienced by the offender is outweighed by the compensat-
ing good effects of overall human well-being. By pointing to a future or
greater ‘good’ the focus is on the instrumental ‘ends’ of punishment. On this
basis it is argued that future crime can be reduced by a number of strategies,
such as deterring potential offenders, reforming actual criminals or keeping
actual or potential offenders out of circulation (Carrabine et al., 2004:
233–5). For Bentham the only rights were legal rights: ‘legitimate, enforce-
able rights come not from nature but from laws duly passed by the supreme
authority of the state’ (Feldman, 2002: 25) and justified by arguments of
social utility. Utilitarianism thereby inspired a ‘positive rights’ tradition
grounded in the legal positivism that continues to be influential in human
rights and other areas of the law.
The second major liberal philosophical justification of punishment is the
retributive, which insists that wrongdoers should be punished because they
deserve it, regardless of any future beneficial consequences. It is a principle
that dates from antiquity and is enshrined in the phrase ‘an eye for an eye’.
This principle of equivalence was developed by the Enlightenment philo-
sopher Immanuel Kant into a highly influential critique of utilitarian justi-
fications of punishment, which use offenders as means rather than fully
recognising their humanity so that the innocent can be deliberately punished
if it is for the general good. Kant introduced a crucial distinction between
what it would be good to do on the grounds of utility and what we have a
right to do (Murphy, 1994: 49). Missing this important distinction between
desire and duty reveals the illiberal consequences that can flow from utilitar-
ian reasoning, as there will be times when the individual is sacrificed for the
general welfare of the many, with torture being perhaps the most contro-
versial example (Morgan, 2000). In Kantian terms, justice is an issue of doing
right rather than what would be good to do.
The duty to punish was, as he defined it, a ‘categorical imperative’ that
restored the moral equilibrium – a view that led him to declare that even on
the dissolution of society ‘the last murderer remaining in prison must first be
executed’ (cited in Walker, 1991: 77). This grim view flows from his insist-
ence that it is a necessary condition of any moral principle that it is strictly
194 The clash of rights
and universally applied. The doctrine is fundamental, as it grounds
individual rights and advocates equal freedom. On this reckoning crime
deserves punishing as the criminal takes an unfair advantage over others
and the purpose of punishment is not only to restore the balance, but is the
right of the criminal; the offender as a rational being has willed a system of
punishment to ensure that no one benefits from wrongdoing (Murphy,
1994).
This abstract understanding of right, as might be expected, has been con-
demned by utilitarians as nothing more than useless vengeance that appeals
to primitive vindictive passions. Others insist there is no meaningful sense in
which offenders have willed their own punishment, except in abstract liberal
theory. In practice, utilitarian and retributive principles are combined in
uneasy hybrids. For instance, it has been recognized that the utilitarian sub-
stantive aim of reducing crime is a fitting general justification for a system of
punishment, but that the pursuit of crime prevention must be subjected to
specific constraints of procedural justice that prevent deliberately punishing
the innocent and excessively punishing the guilty (Duff, 1996: 3). The prob-
lem, however, with pragmatically combining the virtues of each is that the
underlying assumptions guiding utilitarian and retributive thought remain
unchallenged, and it is these challenges I now outline.

Classic sociological critiques

Although there are fundamental differences between these justifications,
they do share some significant common understandings. In particular, they
share the values attached to the individualism that lies at the heart of liberal-
ism as both a moral philosophy and political theory. These values have been
challenged by Marxists and communitarians, while the assumption of
sameness has been questioned by feminist and postmodernist critics, who
have pointed out that what appear to be abstract and universal principles are
Western fabrications and in reality merely partial. The scepticism of sociolo-
gists towards rights can be traced to Marx’s 1844 essay ‘On the Jewish
question’, which wondered what bearing the French Declaration could have
on the discrimination experienced by Jews. His formidable critique is that
the ‘rights of man’ are simply the rights of ‘egoistic man’, divorced from
community, motivated only by whim and self-interest. Subsequent Marxists
have regarded human rights as ideological constructs that seek to universal-
ize capitalist values, like freedom of enterprise at the expense of social
responsibility, while concealing the structured inequalities of class-divided
societies, though for a more optimistic scenario see Chapter 1.
Consequently, many sociological critiques demonstrate how the existing
economic, cultural and political inequalities of societies render the equal
rights talk of liberal discourse as pure rhetoric incapable of being realized in
substantive practice. Marxists have tended to consider punishment in rela-
tion to economic structures to reveal the class interests served by penal
 Punishment, rights and justice 195
practices. In particular, some have stressed the relationships between the
form that punishments take and the economic requirements of particular
modes of production (Rusche and Kirchheimer, 1968), while others have
emphasized the role of punishment in ideological class struggles so that all
forms of ‘bourgeois legalism’ must be rejected (Pashukanis, 1978). However,
E. P. Thompson (1977: 266) argued from a humanistic Marxist position that
the ‘the rule of law’ is an ‘unqualified good’, which was read as an important
rebuke of Marxism for abandoning civil liberty issues – viewing them as mere
legal reformism and not the proper object of socialist politics (Taylor, 1980).
While Marxists demonstrate how punishing offenders reinforces the posi-
tions of the powerful, Durkheim’s sociology challenges this class-divided
view by examining the forces producing social solidarity. Durkheim recog-
nizes that punishment is not a particularly effective way of controlling crime
– in fact he insists this is a modern fantasy – but its significance lies in
publicly declaring that a wrong has been committed and that it is right to
feel outraged by this violation of the social order. For Durkheim, punishment
is fundamentally a moral process that reaffirms the shared values and col-
lective sentiments as crime damages the basic values that hold societies
together. He emphasizes the expressive qualities and communicative aspects
of punishment. Although we might wonder how widely shared collective
values are, there is an important sense in which he shows how punishment is
both ‘necessary and destined to a degree of futility’ (Garland, 1990: 80).
It has also been argued that a communitarian justification of punishment
can overcome the problems of liberal individualism by making the symbolic
dimensions of punishment fundamental (Duff, 2001; Lacey, 2003). In parti-
cular, the liberal tendency to abstract individuals from their social contexts
is rejected in the communitarian critique of rights, as not only do the needs
of the community overshadow those of the individual but, they argue, our
identities are created in the socially embedded relations in which we live our
lives. It is important to distinguish this epistemological critique of liberalism
from the ‘Third Way’ political communitarianism that rose to prominence in
the 1990s, which maintains that rights entail responsibilities to justify wel-
fare state reforms that continue to criminalize the poor (Kennedy, 2004:
230). Nevertheless, the danger is clear. The communitarian critique finds it
difficult, if not impossible, to protect unpopular minorities and individuals
from the menacing authoritarian drift of contemporary political culture and
the intolerant collective sentiments that have been persistently aroused
against strangers, outsiders and pariah groups.
Of the founding figures of sociology, Max Weber concerned himself the
least with punishment, but it is clear that many of his arguments and themes
have informed a number of influential studies. His bleak view that the ‘iron
cage’ of rationality and bureaucracy will ultimately imprison us all is
expanded in Michel Foucault’s (1977) Discipline and Punish. A key inspir-
ation was Nietzsche, who insisted that all interpretation is selective and
partial, while all forms of reason are particular expressions of the will to
196 The clash of rights
power. This is not to suggest, as some critics do, that any of these thinkers
advocates a naive relativism incapable of distinguishing between interpret-
ations of the world. Nietzsche (1996: 22) certainly felt that the tuneless
mediocre nihilism of modern life had to be overcome and was never slow to
condemn the ‘slave revolt in morals’ bequeathed by Christianity and given
secular expression in liberalism and socialism, which resentfully define the
weak as ‘good’ and the strong ‘evil’ to negate his cherished aristocratic
values.
This enduring theme of highlighting the relativity of knowledge to the
interests of those concerned is developed by Foucault, who dissects every
body of knowledge for traces of the will to power it epitomizes. Likewise,
Weber understood modern society as an endless violent struggle for domin-
ation in which different social classes and status groups compete with each
other for a monopoly of resources. The ‘law’ and ‘rights’ have become
crucial elements in these conflicts and are ultimately clashes of value that are
irreconcilable. In response, Weber presented value-freedom as the way of
dealing with the collapse of ideals that tell us how we ought to live (captured
in the nihilist slogan ‘God is dead’). His famous 1918 lecture ‘Science as a
vocation’ explains that science informs us of what is possible, not what is
desirable. As Turner (1993: 493) argues, the troubling implication of these
arguments is that ‘in the absence of a moral framework like natural law,
might is right’. This sceptical interpretation of rights and the demise of
normative foundations have left a legacy of suspicion that continues in
postmodern critiques of both liberalism and Marxism.

Postmodern and feminist critiques

Jacques Derrida (1990) and Zygmunt Bauman (1993) have each contributed
distinctive postmodern arguments by reclaiming the ethical dimension of
justice repressed in liberal preoccupations with distributive fairness, egali-
tarian sameness and formal procedures. Both draw on Emmanuel Levinas’s
(1969) ethics of unconditional responsibility towards the Other. Liberal eth-
ics are based on recognising the essential similarity between the self and
others, and it is precisely this understanding of shared intersubjectivity and
reciprocity that postmodern thinkers contest by emphasizing the singular,
particular and local. The appeal of Levinas lies in his insistence that there
can be no shared agreement as there is always something about the Other
that escapes comprehension and it is this ethical opening to alterity that
must be acknowledged. This moral responsibility towards difference goes
much further than the contingency of liberal tolerance, which is dependent
on the disposition of the superior tolerator and can be granted or aban-
doned, since the Other is placed in relations of inferiority. For Derrida
(2003: 127), tolerance involves a ‘condescending condescension’, and he
advances the notion of unconditional hospitality to deconstruct the apparent
neutrality of tolerance. In Levinas there is a radical reversal of modern ethics
 Punishment, rights and justice 197
by giving priority to the negative Other, ‘which was once unquestionably
assigned to the self’ (Bauman, 1993: 85).
Critics of liberalism have long pointed out how exclusion is integral to
constructing pre-rational children, irrational women, uncivilized black and
Oriental others who, defined by their lack of identification with Western
citizenship, become targets for repression. Under liberalism the ‘discursive
logic dictates that for rights to have meaning, to be cognitively as well as
politically recognised, there must be groups without rights’ (Hudson, 2003:
181), and we will see below how prisoners have long been denied rights
according to this logic. The fact that slavery accompanied the Enlightenment,
modernity produced the Holocaust and mass incarceration is now a defining
feature of social policy in the USA exposes the gaps between the law and
justice. For Derrida (1990), the contradiction can never be resolved and
justice will always remain tantalizingly out of reach, but he insists that a
radical justice of alterity is the only source of moral orientation by which
existing laws can be brought to account.
In recent years there have been attempts to reconcile the postmodern
justice of alterity with Jürgen Habermas’s defence of Kantian liberalism
(Honneth, 1995; Critchley, 1999). Before we discuss the difficulties involved
in this project, it is worth emphasizing that Habermas (1984, 1987a) seeks
to reaffirm the liberal ideals of rights and equality by proposing the com-
municative ethics of ideal speech situations where the better argument wins,
thereby consensually settling disputes under equal and democratic condi-
tions to build a discourse ethics of justice. Discourse ethics provides a pro-
cedure along the lines of Kant’s categorical imperative for adjudicating
between competing positions. Habermas (1987b) is highly critical of post-
modernists for abandoning the Enlightenment project and surrendering to
an irrational conservatism. The implications of his discourse ethics for
criminal justice have been developed by Peter Bal (1996), who insists that
Habermas’s two moral principles of justice and solidarity should be at the
heart of criminal justice, with human rights as the practical discourse, so that
due process and mutual respect should be central to criminal justice systems.
However, the gap (or rather gulf) between Habermas and postmodernists
should be clear. In Habermas the goal of discourse ethics is consensus and
fixing meaning through universal concepts, which, postmodernists argue,
vanquishes those who lose out to or challenge the better argument.
Consequently, Axel Honneth’s (1995) valiant attempt to combine
Habermas and Derrida is one of bridging universalism with the postmodern
‘ethics of care’. He recognizes that this ethics of care cannot be incorporated
under the Habermasian notion of solidarity and proposes that the ‘other of
justice’, based on Levinas’s ethics of alterity, protects the fragile vulner-
ability of human relations.1 The supreme irony in this appeal to alterity, as
Simon Critchley (1998: 268) has amusingly pointed out, is that Levinas’s
ethics are based on his desire to put Judaic wisdom into the language of
philosophy, and raises the prospect that the Bible is one of the founding
198 The clash of rights
postmodern texts. Other critics have been less kind and have held that all
Levinas succeeds in doing is transforming ethics into ‘a category of pious
discourse’ (Badiou, 2002: 23). Although this point might stand for Levinas,
Derrida’s (2001: 28) later writings are concerned with deconstructing for-
giveness in ‘Abrahamic language’, which brings together ‘Judaism, the
Christianities and the Islams’, and traces its impact on Western political
discourse. He defines conditional forgiveness (calculable punishment or
reconciliation processes) as that which predominates in the realm of law and
politics, while unconditional forgiveness (forgiving the unforgivable) poses
an enigma that cannot be reconciled as it belongs to the realm of the
incalculable, the immeasurable and perhaps inconceivable. It is a ‘madness
of the impossible’, yet without the idea of unconditional forgiveness there
would be no forgiveness at all (Derrida, 2001: 39). Derrida is not as
much pious here as pushing at the limits to unravel the implications of such
absolute giving (see also Derrida, 1996).
The issue of alterity also arises in the history of women’s struggle for
rights, and feminists have exposed how abstract universal norms are in fact
partial male constructs. For instance, Simone de Beauvoir (1949) explained
how women are oppressed by being a secondary Other to man’s primary
Self, whose existence is determined by being unlike men. The patriarchal
subordination of the feminine is discussed further by Luce Irigaray (1985),
who argues that the polis, from Plato’s ideal republic to Hegel’s universal
sphere, is founded on exclusion through which women are forced to
resemble men and reject their specificity in order to participate in civic life.
Consequently, she is critical of liberal feminists who have called for the
power imbalances between women and men to be reversed by struggling for
equality, as ultimately it involves accepting the existing terms of debate and
forces women to become like men. The difficulties in the liberal feminist
position were similarly revealed in the struggles over equality in criminal
justice practice, as the best that can be achieved is the right to be treated like
men (MacKinnon, 1987). Thus, Carol Smart (1989: 139) argued that the
early feminist struggle over equal rights had become problematic, as the
language and institutions built to protect rights are based on male ways of
understanding the world.
Consequently, a number of proposals for a ‘feminist jurisprudence’ (Daly,
1989; Carlen, 1990; Naffine, 1990) have been made on two main premises.
The first is that legal categories that are supposedly gender-neutral reflect
male dominance (MacKinnon, 1987); the second is that there is a kind
of reasoning, characteristic to women, that is excluded from criminal
justice decision-making. While feminists continue to emphasize the need
to bring women’s experiences into legal theorizing through advocating
‘woman-wise penology’ (Carlen, 1990), there is widespread dispute over
whether there is a universal ‘female voice’. The tensions between ‘different
voice’ (Gilligan, 1982) and ‘male dominance’ (MacKinnon, 1987) perspec-
tives have structured much debate. One influential approach was Francis
 Punishment, rights and justice 199
Heidensohn’s (1986) use of the care/justice dichotomy in the criminal justice
system. She defines the logic of justice in terms of the Portia principle
(rational, judicial and masculine), and the ethics of care as the Persephone
principle (relational, informal and feminine).2 Her conclusion was that both
approaches have been used at various times in ways not always beneficial.3
The concept of feminist moral reasoning proved to be controversial as it
sought to replace one distorted unitary view of the world, the male, with
another unitary female view (Walklate, 2001), while the term care has been
criticized by disability activists and postmodernists for its oppressive and
‘carceral’ undertones (Hughes et al., 2005: 263). Recent feminist work has
attempted to move beyond essentialist readings of difference in ways that
anticipate and parallel developments in postmodern thinking (Cornell,
1992, 1995). Nancy Fraser (1995, 1997) has struck an important and
influential note of caution against the indiscriminate celebration of differ-
ence at the expense of economic injustice. Although she distinguishes
between cultural recognition and material disadvantage, her own preferred
strategy is one of a ‘deep restructuring’ in both the relations of economic
production and ‘the relations of recognition’ that would be mutually sup-
portive and capable of responding appropriately to varieties of difference
(Fraser, 1995: 86–91).
So far I have outlined a number of classical and contemporary socio-
logical positions and objections to liberal understandings of rights. Many of
these arguments have been quite abstract and before I turn to a more con-
crete set of issues surrounding prisoners rights it is important to pause here
and reflect on what lessons can be learnt. One of the key problems in liberal
penal philosophy is that the focus on individual rights and responsibilities
ignores the social conditions producing criminality. Derrida’s rethinking of
justice, for instance, forces a revision of responsibility based on Kantian
free-willing individual autonomy. Not only does the conventional view of
responsibility provide an impoverished understanding of the differing social
contexts of human action, but it cannot radically respond to or make ‘one
responsible for the other “in oneself” ’ (Borradori, 2003: 168). A justice of
alterity reveals not only how the social construction of offenders often
involves creating ‘evil monsters’ beyond compassion and understanding, but
that we have an unconditional ethical responsibility towards difference and
that this comes before reciprocity. In fact, as argued below, the importance
of human rights is that they can protect those who are ‘beyond our empathy
and beyond our recognition as fellow-citizens of good standing’ (Hudson,
2003: 222).
Moreover, the socialist tradition has criticized liberal conceptualizations
of legal and moral responsibility at the level of the individual by revealing
how this obscures ‘the recognition of collective agents such as corporations
as criminally responsible for harms which result from their activities or
failures of action’ (Benton, 1993: 129). Stanley Cohen (1988: 120, emphasis
in original) has explained how radical criminologists in the 1970s attacked
200 The clash of rights
state definitions of crime by showing how social systems are themselves
criminal, but it was ‘not always too clear whether we are being asked to
condemn these evils instead of conventionally defined crimes or in addition
to these crimes’. Although ‘exposé criminology’ was derided for these con-
tradictions, the very secrecy of the criminal justice and penal systems
‘offer[s] good reason to expect a radical criminology continuously to
expose the fraudulent claims (to distributive justice) of a law whose adminis-
tration is over-determined by exploitative social relations’ (Carlen, 1980:
22, emphasis in original). It is precisely to these matters that this chapter
now turns, by examining some of the concrete issues that surround prisoners
and rights.

Prisoners and rights

Beyond the law

The modern prison was born in the late eighteenth century and since then it
has been justified according to the liberal positions discussed earlier in this
chapter, such as the utilitarian aims of deterrence, incapacitation and
rehabilitation or the retributive principles of just desert, hard labour and less
eligibility. Each of these often conflicting goals has come to dominance at
some point over the past 200 years and they have been combined in uneasy
compromises ever since. The paradox is that throughout Europe up to the
eighteenth century trials were usually held in secret, with the accused often
unaware of the specific details of the case against them, while torture was
routinely used to extract confessions. As Foucault (1977) emphasized, this
intense secrecy stood in stark contrast to the sheer visibility of punishment as
a public spectacle. Although the legal rights of the accused (rights to a fair
trial, innocent until proven guilty, due process constraints and so forth) have
since become regarded as essential defences against arbitrary and oppressive
practices, the convicted are still tainted by the feudal doctrine of ‘civil death’,
which was based on the assumption that the proven criminal was an
‘outlaw’ without any legal rights (Tappan, 1954: 99).
Many critics have argued that prisons have remained ‘lawless agencies’
(Greenberg and Stender, 1972) and that in ‘Britain . . . the law for most
purposes tends to stop at the prison gates, leaving the prisoner to the almost
exclusive control of the prison authorities’ (Zellick, 1974: 331). The con-
tinuing irony is that while there is a complex web of rules and regulations
surrounding a prisoner’s daily life, the institution itself possesses enormous
discretion, with the rule of law practically non-existent. The authorities
enjoy considerable power over the confined, as not only are the rules them-
selves extensive and vague but prisoners are often unaware of their specific
content. Indeed, they are frequently denied access to the mass of standing
orders, circular instructions and service standards that supplement the
statutory rules. The formal rules do not, in any case, provide a code of
 Punishment, rights and justice 201
legally enforceable rights for prisoners and the courts have generally been
reluctant to intervene in prison life even when prisoners have had solid
grounds for challenging decisions.
Such factors reveal the continuing legacy of ‘civil death’ and compound
the arbitrary character of prison regimes, as legal authority offers no defence
against the highly discretionary power of the custodians. Lord Denning’s
(1972) ruling in Becker v. Home Office that the Prison Act did not give ‘any
colour of right’ to a prisoner confirmed the longstanding judicial view that
prison managers should be left to manage and that prisoners are unreliable
troublemakers. Hence he commented that if ‘the courts were to entertain
actions by disgruntled prisoners, the governor’s life would be made intoler-
able’, as the ‘discipline of the prison would be undermined’ (cited in Schone,
2001: 72). However, the past 30 years have seen important developments in
prison law and the emergence of some judicial recognition of prisoners’
rights.

Prisoners’ rights jurisprudence

The gradual and uneven development of judicial intervention began in
Strasbourg when the European Court of Human Rights (ECtHR) decided
in favour of Sidney Golder, who had wrongfully been accused of taking part
in a riot at Parkhurst prison and had been unable to obtain redress in the
English courts.4 In Golder v. UK (1975) the ECtHR established that a num-
ber of Golder’s rights had been violated under articles 6 (fair trial) and
8 (privacy of correspondence) of the European Convention on Human
Rights (ECHR). This was a clear indication that the ECtHR regarded
imprisonment as within the scope of the convention and the court has con-
tinued to uphold the rights of prisoners to have access to the courts and legal
advice, and to sustain communication with the outside world (Livingstone,
2000: 317). The judgement was symbolically powerful and influenced
subsequent domestic judicial activity.
The seminal case of St Germain in the Court of Appeal (1979) marked the
first break with the traditional ‘hands off’ doctrine practised by domestic
courts and dealt with the cavalier disciplinary proceedings held after a riot at
Hull prison in 1976. Over the next decade the domestic courts busied them-
selves with developing procedural guidelines to ensure fair hearings at dis-
ciplinary proceedings (Livingstone et al., 2003: 555). In consequence much
judicial activism, influenced by European human rights jurisprudence, has
concentrated on rights of access to legal advice and to the courts. The land-
mark case of Raymond v. Honey (1982) held that the prison authority’s
interception of a prisoner’s correspondence with a solicitor was a violation
of his ‘constitutional rights’ and thereby a contempt of court. The case con-
tained Lord Wilberforce’s defining statement on the legal status of the con-
victed, which is that a prisoner ‘retains all civil rights which are not taken
away expressly or by necessary implication’ (cited in Richardson, 1985: 26).
202 The clash of rights
Although there are some fundamental difficulties with this understanding of
retained rights, it is important to recall that the common law position had
long been that convicted prisoners had lost all their civil rights and that
prisons themselves were impervious to the rule of law.
Several cases in the 1980s revealed a continuing judicial reluctance
to intervene in either the discretionary exercise of prison administrative
decisions or the disciplinary powers of governors. It was not until the
successful case of Leech v. Deputy Governor of Parkhurst Prison (1988)
that it was established that the courts could judicially review prison gov-
ernors’ disciplinary awards. This important precedent was set only after
appeal to the House of Lords and the battle was won against ‘a prevailing
culture of pragmatism and sovereignty’ (Lazarus, 2004: 209). The current
boundaries of prisoners’ rights jurisprudence were subsequently clarified in
Hague v. Deputy Governor of Parkhurst Prison (1992). The case finally
established that jurisdiction extended to administrative decisions and that
the prison authorities must act within their legally defined powers. However,
the House of Lords did not ‘give any real endorsement to a notion of prisoners
having any rights which they might assert against the authorities, or rights
which might shape or constrain the exercise of official power’ (Livingstone
et al., 2003: 553).
The judgement in Hague marks a turning point, with the courts having
since proven reluctant to intervene in managerial issues but more than will-
ing to act on challenging the discretionary powers of the Home Secretary
over life sentences. During the 1990s a series of cases (Doody, Pierson,
Thompson and Venables) combined to set procedural limits on the execu-
tive’s authority to alter sentence duration so that ‘a pattern of judicial
bifurcation between the protection of prisoners’ personal liberty and the
forestalling of administrative rights’ had become entrenched (Lazarus, 2004:
220). The judicial lack of concern with the discretionary powers of adminis-
trative policies was likewise revealed in a number of recent cases (Hargreaves,
Hepworth and Duggan), which indicated that the legitimate expectations of
prisoners will not receive much support in the courts – to the extent that
some argue that the end of the 1990s saw a judicial retreat from positive
legal rights activism and that the introduction of the Human Rights Act
1998 will have a limited impact on prison litigation (Schone, 2001). The Act
came into force in 2000 and, while it does offer the judiciary an enhanced
supervisory role, the decisions to date indicate a continuing deference to
prison policy and administration, with the ECtHR remaining the more
progressive on issues of prisoners rights (Livingstone et al., 2003: 563).

The limits of judicial intervention

It is important to put this judicial activism into sociological perspective.
Although many of these cases have been hard won, their actual impact on
prisoners’ lives has been very selective, and this highlights the difficulties of
 Punishment, rights and justice 203
relying on the legal establishment to defend and define rights. The successes
have been restricted to residual individual liberties such as correspondence
with lawyers, access to courts, disciplinary hearings and release procedures –
all matters that the judiciary are confident in dealing with. In contrast, the
courts have not intervened in controversial administrative issues, such as
transfers, segregation and living conditions that have a debilitating effect on
prisoners. The fact that the courts have had such a negligible impact on most
areas of prison life is partly explained by the longstanding scepticism
towards natural rights in English political life, while the continuing defer-
ence to parliamentary sovereignty ensures that ‘the statutory regime govern-
ing prisons in England is concerned, not with the definition of the prisoners’
legal status or the creation of legally enforceable rights, but with clarifying
lines of political control and accountability’ (Lazarus, 2004: 251).
Although the highly active domestic penal reform movement has won
some important victories here, including a critical Prisons Inspectorate and
Prisons Ombudsman that monitor regimes and complaints, the campaign
for prisoners’ rights suffers not simply from a lack of popular interest. More
importantly, it is damaged by the deeper dynamics of penal forces that inter-
sect with the cynical exploitation of public anxieties surrounding crime by
successive governments since the late 1970s. It is in the political context of
‘authoritarian populism’ (Hall, 1979) that the current modest conception of
the prisoner’s legal status has developed, which is that a prisoner ‘retains all
civil rights which are not taken away expressly or by necessary implication’
(in Raymond v. Honey, 1 All ER 756, 1982: 759). However, Richardson
(1985: 27) has argued that this understanding of retained rights is problem-
atic ‘due to the considerable uncertainty created by both the elusive legal
concept of civil rights and the breadth of the phrase “by necessary implica-
tion” ’. Instead, she proposes that prisoners ought to be entitled to ‘special
rights’ against the authorities because of the specific forms of vulnerability
and dependence that the confined routinely encounter. Her position is one
that is sociologically richer than the legal conception of rights used in
judicial activism, as she recognizes that ‘any concept of prisoners’ rights
which is restricted to a residue of the rights generally possessed by non-
prisoners against the state, most of which are best classified as “civil and
political”, and ignores the prisoners’ claims to additional and often “social
and economic” rights, would be seriously deficient’ (Richardson, 1995:
181). Yet as should now be clear there has not been any judicial recognition
of prisoners having any entitlements that protect them against ill-treatment
and the long-term damages inflicted by the institution.
Of course, prisoners do not attract much public sympathy, nor is there any
political capital to be gained in the cause of prisoners’ rights. But it is precisely
because of their marginalization and vulnerability that the confined need
protection. As the Chief Inspector of Prisons, Anne Owers, has explained:

It is particularly the marginalised who need the protection of human

204 The clash of rights
rights: by definition, they may not be able to look for that protection to
the democratic process, or the common consensus. And most of those in
our prisons were on the margins long before they reached prison (look
at the high levels of school exclusion, illiteracy, mental disorder, sub-
stance and other abuse); and may be even more so afterwards (with
difficulty in securing jobs, homes, continued treatment, and even more
fractured and community ties). Prisons exclude literally: but they hold
those who already were and will be excluded in practice.
(Owers, 2003: 1–2)

It is significant that she goes on to document, among other things, the

human rights abuses that routinely occur to children in English prisons (such
as strip-searching, segregation and intimidation), while highlighting the
systemic failures that lead to deaths in custody and recognising ‘that much of
what I am describing would not found a successful human rights challenge
in the courts’ (Owers, 2003: 4).
The implicit argument is that human rights are not simply legal entitle-
ments but are moral obligations that ought to condition social relations in
and beyond prison walls. In important respects, this returns us to the socio-
logical critiques of liberal thinking that this chapter has introduced – namely
that the assumption of sameness before the law masks the determining con-
texts of already existing economic inequalities, social injustice and political
marginalization. Clearly the law and justice are not the same, but bridging
the gulf that separates them is the space that human rights can occupy so
that the universalism of due process is combined with mutual respect and an
ethics of responsibility. As Hudson (2001: 145) describes it, the ‘formal
elements of the law involve applying legal rules consistently, and therefore if
carried out fulfil the requirements of justice as fairness; substantive justice
involves making the right decisions, providing the right remedy, for the par-
ticular case, and thus corresponds with the principle of justice as alterity’.
The crucial point is that although these are complementary principles they
often conflict, as when repressive crime control policies carried out in the
name of a substantive good curtail due process conventions. This is borne
out in the current detention of asylum seekers, where ‘legal rights are over-
ridden by populist policies based on security and control’ (Malloch and
Stanley, 2005: 66). Bal’s (1996) argument that human rights can provide the
moral substance for criminal justice practice is a significant one, as it states
not only that offenders should be protected from instrumental policies but
that the conditions of imprisonment themselves must be subjected to human
rights principles. It is to such conditions that the chapter now turns.

Continuing controversies
The current penal problems can be regarded as simply too many offenders in
too few prison places, which give rise to overcrowding, understaffing and
 Punishment, rights and justice 205
decrepit conditions. The striking increase in Britain’s prison population,
which rose from 42,000 in 1991 to 74,023 in 2003, is due to the courts
sending more people to prison and sending them there for longer. For
instance, the proportion of adults convicted in the crown courts who were
sent to prison increased from 45 per cent in 1992 to 64 per cent in 2001
(Kennedy, 2004: 281–2). Although the country lies some way behind the
global leaders in imprisonment – Russia, the USA, China and South Africa –
this should not detract from the fact that England and Wales consistently
uses imprisonment to a greater extent than practically every country in
Western Europe (Carrabine et al., 2004: 290). The expanding prison system
was initially fuelled by the infamous insistence of the then Conservative
Home Secretary, Michael Howard, in 1993 that ‘prison works’ and the
introduction of a range of austere policies that subjected prisoners to grim
regimes. The Labour government has continued to rely on expanding the
prison system, but by ‘making prisons work’, in the words of the new Home
Secretary Jack Straw in 1998, through rescuing rehabilitative programmes.
As the prison population has spiralled so has the problem of overcrowd-
ing, especially in local prisons. It has been estimated that by June 2003,
85 out of 138 prisons were overcrowded, as were 9 of the 13 new prisons
built since 1993 (NACRO, 2003: 6). The problems generated by over-
crowding have to be located in the material context of dilapidated physical
conditions in which many prisoners are contained, combined with poor
sanitation, scarcely edible food, decaying cramped cells, clothing shortages
and brief, inadequate family visits.5 Compounding this deprivation are the
severely restricted and oppressive regimes that are imposed in the absence of
space, facilities and resources to provide prisoners with a range of training,
work and educational opportunities. Hence, conditions of almost total
‘lock-down’ prevail.
Over the past decade the number of women in prison has trebled.
Although women make up only 6 per cent of the prison population, 20 per
cent of prison suicides from January to August 2004 were women, with
nearly half of all self-harm incidents involving women (Scraton and Moore,
2004: 35–6). Half of all women in prison are on prescribed medication such
as anti-depressants or anti-psychotics, with two-thirds having children
under the age of 16, which has been estimated at 24,000 children (Kennedy,
2004: 285). The government’s own Strategy for Women Offenders, pub-
lished in 2000, recognizes that the ‘current system does impact differently on
women and men’ (cited in Scraton and Moore, 2004: 36), which echoes
longstanding feminist criticisms, discussed above, that treating women the
same as men only compounds inequality. For instance, Carlen (1998: 10)
has argued that women’s imprisonment ‘incorporates and amplifies all the
anti-social modes of control that oppress women outside the prison’, and
that the rationales for reducing the imprisonment of women have been sub-
verted and are now used to lock up more women through processes of
‘carceral clawback’ (Carlen, 2002).
206 The clash of rights
The controversies surrounding deaths in custody raise fundamental
questions over the state’s responsibility to protect prisoner’s lives and pre-
vent death. The Strasbourg court has consistently held that the state’s article
2 positive obligation of the ECHR to protect life extends to prisoners. In
Keenan v. United Kingdom (2001) the ECtHR held that this obligation
included a duty to prevent suicides when authorities were aware of a
‘real and immediate risk’. This positive obligation was further clarified in
Edwards v. United Kingdom (2002), where the court held that the author-
ities had failed to appreciate the vulnerability of Christopher Edwards, who
was murdered by his cell-mate at Chelmsford prison, as both prisoners
suffered from mental illness (Scott, 2004: 20). The Prison Service is still
under scrutiny following the murder of an Asian teenager, Zahid Mubarek,
at Feltham Young Offenders Institution in 2000, who was put in a cell with a
known racist who had openly fantasized about committing a racist murder.
It has also been argued that the brutal deaths of ethnic minorities while in
prison custody is similar to the deaths of African/Caribbeans in police cus-
tody, as there is ‘a tendency for prison staff to overreact to disruptive
behaviour by African/Caribbean prisoners, whereby the stereotype of “Big,
Black and Dangerous” seems to predominate in determining their response’
(Bowling and Phillips, 2002: 208). This view is confirmed in the BBC docu-
mentary Death on Camera (2004), which broadcast CCTV footage of the
death in police custody of Christopher Alder, who had been left to die on the
floor of a Hull police station in 1998. The fact that black people are six times
more likely to be imprisoned than whites, even if it is their first offence,
combined with the substantial evidence of racial discrimination in the
police, courts and prisons, confirms that there is systematic injustice in the
criminal justice system.
The United Nations Committee on the Rights of the Child (2002) has
formally raised a range of concerns over youth justice policy and practice in
England and Wales, not least since the country imprisons twice as many
children as the rest of Western Europe combined. Critics of Labour’s youth
justice policy are especially concerned with the government’s continuing
reliance on custodial sentences for young offenders, with campaigners argu-
ing ‘that the Government’s “obsession” with teenagers on street corners had
contributed to the sharp rise in the number of young people in prison’. In
particular, there has been ‘a ninefold rise in the number of children under 15
being sentenced to custody’ (Bright, 2003: 9). It has been estimated that
40 per cent of young people in prison have been in local authority care,
while a staggering 90 per cent have mental health or substance abuse prob-
lems. Nearly a quarter have literacy and numeracy skills below those of
an average seven-year-old and a significant proportion have suffered phys-
ical and sexual abuse (Kennedy, 2004: 292). This punitive direction in
youth justice is as inhumane in its violation of rights as it is ineffective in
preventing crime.
 Punishment, rights and justice 207
Conclusion
This is by no means an exhaustive discussion of the current controversies in
prisons, yet what it does illustrate is that ‘democratic states with strong legal
institutions and rights traditions can and do abuse the human rights of their
citizens’ and that they ‘can do so with perfect legality’ (Ignatieff, 2000: 37–8).
Human rights are social inventions. They are not intrinsic to individuals but
are attached, created and removed by external forces. As Arendt (1973) has
shown, human rights depend on strong political arrangement to enforce and
protect them. Her account of how the Nazis dehumanized Jews highlights
how fragile are appeals to common humanity in defending the vulnerable
and marginalized. The importance of human rights legislation is that it
mandates ‘an obligation to respect human agency’ (Ignatieff, 2000: 39).
What this brief discussion of prison conditions has shown is that the com-
bination of structural disadvantages and demonizing media representations
masks the grim realities of many prisoners’ lives. It is these social injustices
that demand recognition and their human rights that need defending. Of
course, this is not to deny that crimes need to be censured, but the material
covered in this chapter should be seen as advancing a fuller acknowledgement
of social wrongs and a fuller protection of the human rights of all.

Notes
1 There are certain affinities here with Turner’s (1993: 506) appeal to ‘collective
sympathy’ as a means of generating moral intersubjectivity through Durkheimian
compassion rather than Kantian duty.
2 Portia is the female character in Shakespeare’s Merchant of Venice who tricks
the money-lender Shylock out of his pound of flesh, while Persephone was a
goddess in Greek mythology who spent part of each year with her husband Hades
in the underworld and then returned to the upper world for part of the year with
her mother. The myth is seen as explaining the changing seasons and fertility
cycles, with the world grieving her absence in winter and blossoming on her return
in spring. This solution is seen as exemplifying the virtues of relational justice, as it
is acceptable to all involved, rather than distinguishing between right and wrong.
3 Sentencing is often used as an example to illustrate how the two elements are
combined, as there is a formal element that involves dealing with offenders in a
procedurally consistent fashion to ensure fairness and a substantive element of
doing what is the most appropriate in the particular case. Not only can this result
in an individualized and paternalistic form of justice for female offenders
(Edwards, 1984), but the balance between the two shifts over time and has in
recent years moved in a logic of justice direction over the ethic of care (Hudson,
1993).
4 Since 1966 individuals have been able to take their cases to the European Court of
Human Rights in Strasbourg (Schone, 2001: 73) and in Britain the Human Rights
Act now provides domestic remedy (as of 2000).
5 The domestic courts and Strasbourg institutions have been reluctant to intervene
in these routine conditions of neglect. The ECtHR has taken the view that article 3
of the convention, which prohibits torture, inhuman or degrading treatment or
punishment, was not intended to find the inevitable deprivations of imprisonment
as human rights violations. For instance, in Reed v. United Kingdom (1983)
208 The clash of rights
‘spending three weeks in a cockroach-infested cell was held not to be enough’, but
in a more recent case, Tekin v. Turkey (1998), the court found a breach of article 3
‘where the applicant was held for four days in a police cell in freezing conditions
and with little food and water’; but the fact that the prisoner also received regular
beatings means that ‘the decision leaves it unclear whether the neglect or physical
mistreatment alone might amount to inhuman or degrading treatment’ (Living-
stone, 2000: 314–15). In contrast, the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (CPT) has used the
terms ‘inhuman’ and ‘degrading’ to describe custodial living conditions, but has
taken a cumulative view so that ‘the combination of overcrowding, lack of inte-
gral sanitation, almost unalleviated cellular confinement and/or lack of outdoor
exercise have on several occasions been judged to amount to inhuman and degrad-
ing treatment’ (Morgan, 2001: 728). However, the CPT has no judicial function.
The distinction is that the ECtHR aims at ‘ “conflict solution” on the legal level,
the CPT’s activities aim at “conflict avoidance” on the practical level . . . to
strengthen the “cordon sanitaire” that separates acceptable and unacceptable
treatment or behaviour’ (Evans and Morgan, 1999: 6). The more important point
is that international human rights standards lay a floor (i.e. the minimum an
individual should expect) rather than set a ceiling (i.e. aspiration) of obligations
(Scraton and Moore, 2004: 22).
11 Mental disorder and
human rights
Joan Busfield

In this chapter I draw on sociological ideas, as well as those of other

theorists, to explore human rights issues in relation to mental disorder – a
term that is more or less interchangeable with that of mental illness, though
it has fewer medical connotations. I consider two main areas. First, the
frequent tendency to deny human rights, particularly liberty, to individuals
identified as having a serious mental disorder that involves residential care.
Those with severe mental disorders have not, of course, been the only group
to be denied human rights, even in societies where human rights have
become quite well established, but they are a significant group, and the
denial of human rights to this particular group reveals some of the assump-
tions that underpin the acquisition of such rights. Second, I move on to
consider the acquisition of human rights by those with severe mental dis-
orders. How and to what extent are these rights acquired? What factors
underpin the shift from a situation of the denial of human rights to the
acquisition of at least some rights? In seeking to examine these issues, I do
not cover either criminal insanity or learning difficulties, since these would
require specialist discussion, well beyond the scope of this chapter. I want to
start by considering some theoretical ideas about both mental disorder and
human rights.

Theoretical underpinnings

Theorising mental disorder

Before we can consider human rights in relation to mental disorder, we first
need to have some understanding of the term ‘mental disorder’. Theoretical
thinking about the concept of mental disorder is extensive and diverse.
However, for the purposes of this chapter I want to draw on two sets of ideas
in examining the concept. The first set of ideas is provided by Michel
Foucault’s conceptualisation of ‘madness’, a narrower term than that of
mental disorder, which is to be found in his influential book Madness and
Civilisation (1967). In this study Foucault seeks to document the changes in
the way societies understood and responded to madness in the seventeenth
210 The clash of rights
and eighteenth centuries, a period he terms the Classical Age. He argues that
madness is best viewed as a form of ‘unreason’ and that in Western societies
from the Middle Ages onwards reason and madness have stood in an opposi-
tional but closely intertwined relationship: ‘the Reason–Madness nexus
constitutes for Western culture one of the dimensions of its originality’
(ibid.: xiii). Irrationality and unreason are at the heart of our notions of
madness. This is highlighted very effectively by Michael MacDonald’s
important study of madness and anxiety in seventeenth-century Britain,
Mystical Bedlam (1981). MacDonald examined the case notes of an early
seventeenth-century astrological physician, Richard Napier, who was con-
sulted about a diverse range of problems that we would now call psycho-
logical. Like Foucault, MacDonald sees reason as at the heart of judgements
of insanity – ‘Madness stripped men of their reason, the essential accoutre-
ment of humankind’ (ibid.: 130) – and, drawing on Napier’s case notes, he
documents its symptoms. Complaints that would be considered indicative of
madness, or mania (to use the medical term of the time), were characterised
by ‘terrible energy and mental incoherence’ and were evidenced in popular
eyes by ‘frantic behaviour, excess talk, odd laughter’ by destructive actions,
particularly actions that seemed inexplicable, such as attacks on family mem-
bers or personal property or self-violence. Attacking what was highly valued
by most people was a sign of madness, since it seemed incomprehensible –
lacking in reason.
Foucault’s focus on irrationality as the defining characteristic of madness
has been highly influential and is grounded, as MacDonald’s study made
clear, in lay understandings – as when we nowadays talk of someone being
‘out of their mind’.1 In present day classifications the term ‘madness’ corres-
ponds most closely to the category of psychosis, often defined loosely by
psychiatrists as involving a ‘loss of contact with reality’, or in legal contexts
as being of ‘unsound mind’.2 Such conceptualisations can clearly help to
legitimate a denial of rights to those deemed mad, since reason is central to
our notions of humanity and assumptions about the capacity for reason
underpin many human rights. They also help to account for the stigma
attendant on madness. Mad people are frequently stigmatised, marginalised,
subject to discrimination and treated as ‘other’.
A second set of ideas is, however, highly pertinent to the developments in
understandings of mental disorder in the nineteenth and twentieth centuries.
These are the ideas surrounding the notion of ‘medicalisation’ – a term first
used in the early 1970s (see Zola, 1972; Illich, 1975) and also found in
Foucault’s later work. In the case of madness, this involved its transform-
ation in both professional and lay understandings into mental illness, a far
wider category than madness.3 As MacDonald’s study shows, people not
only brought problems indicative of madness to Richard Napier, they also
brought less severe problems that suggested they were ‘troubled in mind’,
‘melancholic’ or ‘mopish’ (a more plebeian version of melancholia).4 Of
these only melancholia embodied a medical categorisation that, along
 Mental disorder and human rights 211
with mania, had already entered lay discourse. However, during subsequent
centuries the involvement of doctors in the treatment of madness, and of a
far broader range of mental troubles, increased enormously – troubles where
the issue of irrationality is less obviously at stake and the social response is
likely to differ.5
Foucault examined changing ideas about madness during the seventeenth
and eighteenth centuries, ending with the ‘birth of the asylum’. In the nine-
teenth century the number and size of asylums, often publicly funded, began
to expand in many European countries and the USA, and as the century
progressed most became increasingly custodial, serving as ‘warehouses’ for
the unwanted, often, though not exclusively, those from the lower classes
(Donnelly, 1983). It was in this context that the medical specialty that we
now know as psychiatry developed and there were growing efforts to medi-
calise the care and treatment of insanity. These changes helped to displace
the language of lunacy and madness and replace it with the medical language
of mental illness.6 They also helped to expand the range of mental health
problems defined as mental illnesses and incorporated into official psychi-
atric classifications.7 In the seventeenth and eighteenth centuries the key
contrast in medical formulations had been between mania and melancholia.
During the nineteenth century classifications became more numerous and
diverse, and in the twentieth century not only were there moves to greater
standardisation, but a range of new disorders of emotion and behaviour
were also introduced – affective disorders, such as depression, the neuroses
and behaviour or personality disorders (Busfield, 2002).
In his study Creating Mental Illness (2002), Alan Horwitz examines the
expansion of the category of mental illness in the past three decades, and
links this particularly to decisions by the influential American Psychiatric
Association to define mental illness in later editions of the Diagnostic and
Statistical Manual of Mental Disorders in terms of ‘overt symptoms regard-
less of the cause or context of these symptoms’ (Horwitz, 2002: 89).8 One
can, however, also emphasise the importance of new treatments to this
expansion, especially the increasingly widespread use of psychotropic drugs
from the 1950s onwards (see, for instance, Healey, 1997), as well as the
development of welfare regimes in which more resources have been devoted
to health care (including mental health). Horwitz argues, as other authors
have done, that some of the mental illnesses listed in psychiatric classifica-
tions should be regarded not as illnesses at all but as normal psychological
reactions to difficult situations – hence the need to focus on causes and
contexts in making judgements about the presence or absence of disorder,
not just on symptoms. He argues that where ‘symptoms’ are normal psycho-
logical reactions to difficult situations they cannot be regarded as forms of
irrationality (what he terms internal psychological dysfunctions).9 Such
points are important to any consideration of mental disorder and human
rights, since we need to recognise that the use of the term mental disorder
has changed markedly over time and this has consequences for the rights of
212 The clash of rights
those identified as having such a disorder. Eighteenth-century madness
cannot be equated with twenty-first-century mental illness or mental dis-
order, although as Napier’s study shows, the ‘symptoms’ of many of the new
disorders may have been regarded as problematic in earlier centuries and as
requiring some form of help.

Theorising rights
I now turn to consider sociological theorising about human rights. Probably
the best-known discussion is to be found in T. H. Marshall’s influential essay
‘Citizenship and social class’ (1963), based on a lecture given in 1949.10 In
this essay Marshall does two things. First, he provides a categorisation of the
rights of citizenship – that is, being a member of a community – into civil,
political and social rights; second, he offers an account of the factors under-
pinning the acquisition of citizenship rights and their relation to social class.
Both the categorisation and his theoretical analysis are useful when con-
sidering the linkages between mental disorder and human rights. Marshall
defines civil rights as the set of rights relating to individual freedom embed-
ded in the law: ‘liberty of the person, freedom of speech, thought and faith,
the right to own property and to conclude valid contracts, and the right to
justice’ (ibid.: 74). These rights include the right to work and are, he con-
tends, the rights necessary for capitalism, a system that requires people to
engage as individuals in the market. At the institutional level, these rights are
supported by the civil courts. They tend, he argues, to be achieved earliest,
suggesting that they were formally achieved as universal rights in Britain in
the eighteenth century; the same was true in the USA, where they were
incorporated into the 1776 Declaration of Independence, and in France,
where they were the basis of the 1789 Declaration of the Rights of Man.
Political rights refer to ‘the right to participate in the exercise of political
power, as a member of a body invested with political authority or as an
elector of the members of such a body’ (ibid.: 74). The institutions here are
the national and local governing bodies. In Britain political rights were
secured for many members of the population in the nineteenth century after
considerable political struggle, although universal suffrage was not fully
achieved until the twentieth century. Again, the speed and timing of their
introduction varied across Europe and the USA. However, unlike civil rights,
political rights are, Marshall contends, a threat to capitalism, since they
include not only the right to vote (and so potentially the power to get rid of
governments) but also the right to collective bargaining through trade
unions.
Social rights are the third type of right identified by Marshall and include
‘the right to a modicum of economic welfare and security and the right to
share to the full in the social heritage and to live the life of a civilized being
according to the standards prevailing in society’ (ibid.). The corresponding
institutions are the educational system and welfare services, such as health
 Mental disorder and human rights 213
services, and social security benefits covering unemployment, retirement and
sickness. Marshall contends that social rights, like political rights, are a
threat to capitalism because of the way they modify market arrangements
(an example is unemployment benefit, which may affect an individual’s will-
ingness to work as well as rates of pay), and again they have only been
achieved (to the extent that they have) after considerable political struggle.
Social rights were not included in the eighteenth-century codification of
rights such as the US Declaration of Independence or the French Declaration
of the Rights of Man, and were largely secured in the twentieth century.
Article 25 (1) of the 1948 United Nations Universal Declaration of Human
Rights asserts:

Everyone has the right to a standard of living adequate for the health
and well-being of himself and of his family, including food, clothing,
housing and medical care and necessary social services, and the right to
security in the event of unemployment, sickness, disability, widowhood,
old age or other lack of livelihood in circumstances beyond his control.

Such rights were more fully elaborated in the 1966 UN International

Covenant on Economic, Social and Cultural Rights (which paralleled a simi-
lar covenant on civil and political rights the same year). Article 12 of this
covenant asserts ‘the rights of everyone to the enjoyment of the highest
attainable standard of physical and mental health’ and set out the steps to be
taken to realise this right, including ‘the creation of conditions which would
assure to all medical service and medical attention in the event of sickness’.
The right is not a right to be healthy but a right to services that help to
maintain health and treat sickness (United Nations, 2005: para. 32). How-
ever, it needs to be noted that the UN Declaration and the UN Covenants did
not have legal status and had to await incorporation into national laws, a
process that has occurred very unevenly.
Marshall suggests that citizenship, with its focus on rights, is a system that
provides a basic equality of status for those who hold it, but that this equal-
ity is qualified. On the one hand, the principle of equality before the law may
be difficult to achieve in practice, and there may be barriers to securing
access to this equality. On the other hand, and related to this, the inequal-
ities of social class can continue; indeed, the rights associated with citizen-
ship may help to legitimate the inequalities of social class. For instance, the
educational system can reinforce the stratification involved in occupational
structures. Moreover, citizenship rights may make other social inequalities
less visible.
Marshall’s work is arguably more complex that his critics have allowed. It
is tempting to see his framework as assuming a linear, evolutionary devel-
opment of rights. However, I would contend that, notwithstanding the
claims of others (see, for instance, Mann, 1987), he does recognise the
possibility of major conflicts over rights in which there can be a reversal of
214 The clash of rights
rights (welfare rights provides a clear example where rights may be gained
but later lost). Moreover, although his examples are from Britain, in my view
his categorisation of rights and his consideration of the tensions between
citizenship and capitalism can be applied to other societies. Subsequent
authors have developed his analysis in a number of different ways. For
instance, as Morris outlines in Chapter 4 of this volume, Lockwood (1996),
like Marshall, explores the relationship between citizenship and social
inequality in capitalist welfare state democracies. He portrays the contrast
between the status of citizenship and the stratification dependent on moral
and material resources as two axes with binary positions: the presence or
absence of rights, on the one hand, and the possession of moral or material
resources, on the other. This generates four types of ‘civic stratification’. The
first two are ‘civic gain’ and ‘civic deficit’; in both instances citizenship rights
have been achieved but moral and material resources are present in one case
and absent in the other. The second two are ‘civic expansion’ and ‘civic
exclusion’; in both citizenship rights are absent, but in one moral and
material resources are present, in the other they are absent. Amending this
model, Morris suggests inclusion should be paired with exclusion, and
introduces a third axis into the model, involving an opposition between civic
expansion and civic contraction to refer to the ‘shifting character of a regime
of rights’. What is important in the work of all three authors is consideration
of the interplay of the rights of citizenship with social stratification.
We can, however, also draw on the ideas of other authors to look at the
development of rights. Esping-Andersen’s (1990) model of welfare regimes
is of particular relevance to the acquisition of social rights, and in the case of
marginal groups may have implications for civil and political rights, since
welfare regimes may, for instance, have an impact on the use of confinement.
Looking at modern welfare regimes, he identifies three types of regime:
liberal, corporatist and social democratic. In liberal welfare regimes such as
the USA, welfare is largely dependent on the ability to pay and there is only
residual public welfare provision. In corporatist welfare regimes such as
Germany, welfare rights, which are usually beyond minimal levels, largely
attach to employment and not the ability to pay. In social democratic
regimes – for instance, Sweden in the 1960s and 1970s – welfare benefits are
universal and beyond minimal levels. Esping-Andersen also provides an
analysis of how different welfare regimes develop, an analysis that focuses
on the class dynamics within particular countries, including the nature of
class mobilisation, as well as the legacy of regime institutionalisation.
Drawing on these theoretical foundations I now explore human rights and
mental disorder.

The denial of rights to those with severe mental disorder

In some historical periods and in some societies mad people have been
imbued with religious significance and have been regarded as having special
 Mental disorder and human rights 215
powers. However, the denial of liberty to persons deemed mad – that is,
persons whom we would now consider as having a severe, usually psychotic,
mental disorder – has a long history, and in many Western societies predates
Enlightenment thinking and the acquisition of civil rights, such as the right
to liberty. Those considered dangerous might be chained or locked away in
jail in the interests of the safety of the local population. Foucault argues that
in France the general confinement of the mad alongside the poor, criminals
and the morally depraved increased in the seventeenth century, to be
followed at the end of the eighteenth by the development of new asylums. In
Britain as early as the seventeenth century some private madhouses were set
up, a practice associated with the entrepreneurial endeavour of nascent cap-
italism. The madhouses catered for more affluent individuals or for lunatics
sent there under poor law provisions. They were followed in the eighteenth
century by charitable asylums for the respectable poor, and then in the
nineteenth century by publicly funded asylums primarily for pauper luna-
tics, as the idea of institutional solutions to a range of social issues and
problems took hold – workhouses, hospitals, prisons and penitentiaries
(Busfield, 1986). And there were similar developments in many other Western
countries, albeit often at a different pace.
There seems little doubt that at least up to the nineteenth century con-
finement was frequently associated with harsh and often brutal treat-
ment – a treatment that in the case of the insane was associated with a view
that the insane were more like animals than humans in their wildness and
ferocity:

Madness borrowed its face from the mask of the beast. Those chained
to the cell walls were no longer men whose minds had wandered, but
beasts preyed upon by a natural frenzy: as if madness, at its extreme
point, freed from that moral unreason in which its most attenuated
forms are enclosed, managed to rejoin, by a paroxysm of strength, the
immediate violence of animality. This model of animality prevailed in
the asylums, and gave them their cage-like aspect, their look of the
menagerie.
(Foucault, 1967: 72)

As animals, the wildness and ferocity of the mad had to be tamed.

Confinement and physical restraint, which deprived mad people of their
liberty, were clearly justifiable given this conception, but so too was the use
of fear in dealing with those confined: ‘Fear, being a passion that diminishes
excitement, may therefore be opposed to the excess of it; and particularly to
the angry and irascible excitement of maniacs.’11 The only legal remedy
against the confinement of a mad person was a writ of habeas corpus,
which might be taken out by a member of the family seeking to secure
the release of a person confined, an expensive procedure that was only
sometimes successful.
216 The clash of rights
The end of the eighteenth century is usually regarded as a turning point in
Western conceptions and treatment of madness. In both Britain and France,
a new philosophy of the ‘moral management’ of the insane was developed by
writers such as Samuel Tuke and Philippe Pinel, in which the focus was less
on physical restraint and more on ‘psychological’ control. The new philo-
sophy emphasised the role of the institution as a place where the individual
could escape the pressures of everyday life – hence the term asylum – where
harshness and coercion were to be replaced by moral authority and where
order and regularity were to encourage the capacity for self-restraint. The
use of fear still had a place in the management of patients but ‘it was not to
be excited, beyond that degree which naturally arises from the necessary
regulations of the family’ (Tuke, 1813: 141). The implications are clear: mad
persons might lack rationality but they were humans rather than animals
and were capable of exercising some control.

Insane persons generally possess a degree of control over their wayward

propensities. Their intellectual, active and moral powers, are usually
rather perverted than obliterated; and it happens, not unfrequently, that
one faculty only is affected. The disorder is sometimes more partial,
and can usually only be detected by erroneous views, on one particular
subject. On all others the mind appears to retain its wonted correctness.
(Ibid.: 133–4)

While there is evidence that such a conception of insanity was not entirely
new (a more humane view of those with melancholia, often individuals
from the upper classes, had existed prior to this), important changes in
conceptions of madness did occur during this period and did so at precisely
the same time that an emphasis on the liberty of the subject was develop-
ing and civil rights were being acquired by most of the population. How-
ever, the changes in conceptions of madness did not free mad people from
the possibility of confinement and the attendant loss of rights – civic exclu-
sion in Lockwood’s terms. In law, for instance, lunatics had in effect the
status of children and contracts they made were not enforceable. This
denial of rights occurred even though the majority had not committed any
criminal offence that might justify their detention. Confinement of mad
people and the attendant loss of rights were justified in terms of their
irrationality (albeit often partial) and the potential power of the asylum to
correct it. The aim, though frequently over-optimistic, was to restore the
person to rationality so that they could return to the community and share
the same rights that others were acquiring.12 Indeed, the confinement of
mad people increased across Europe in the nineteenth century, in part
because of a new therapeutic optimism, itself encouraged by the increasing
claims by medical men of their power to cure insanity (which would
reduce the burden of dependency), but also because, once established, the
asylums rapidly filled up with those persons (often only a relatively small
 Mental disorder and human rights 217
proportion of those admitted) whose problems were long term and could
not easily be remedied. None the less, while it did not secure the rights
of those detained during the nineteenth century, the changed conception of
madness did start to lay the foundations for the subsequent acquisition
of rights by those deemed mad or disordered in mind, which I consider in the
next section.
One important area of change during the nineteenth and twentieth centur-
ies was the formulation of clearer legal procedures for admitting someone to
an institution because of the loss of liberty that resulted and the public’s
fears of arbitrary incarceration.13 These procedures required certificates to
be signed if a person were to be admitted to an asylum – a medical certificate
becoming necessary in most cases. In France, for instance, the 1838 Lunacy
Act, widely regarded as a piece of pioneering legislation that became a model
for many other countries, required a petition by a relative or friend and a
medical certificate for admission in non-emergency cases. Admission in
emergency cases, where there was a threat to public order or the safety of
others, required a signature from a prefect, followed by a clinical assessment
within 24 hours of admission and then again within 14 days, with a report
to the prefect on each occasion.
Certification procedures provided some regulation of admission to the
asylum, even though they did not prevent the admission of some individuals
who were not severely disturbed. The procedures were, however, largely
designed to protect the civil rights of those who were not mad – to prevent
wrongful detention. They did not ensure any rights to inmates: those admit-
ted continued largely to be denied their civil rights, especially if they ended
up as long-stay patients, and they were also excluded from the emerging
political rights being secured by key groups in the population. Moreover,
for all the therapeutic optimism that had facilitated the development of
asylums, certification served as a reminder of the legal compulsion under-
pinning asylum use and became highly stigmatising, since it required clear
evidence of insanity. Indeed, there was an ongoing tension between cus-
todial models of the asylum symbolised by certification and compulsory
detention, and therapeutic models symbolised by the presence of medical
men. This tension has continued to the present, since the legal powers to
detain on grounds of severe mental disorder (along frequently with the per-
ceived dangers to the public) remain.14 However, the use of these powers is
now more regulated and restricted and the rights of those so detained have
generally increased. In the section that follows I look at the acquisition of
rights by those confined on grounds of severe mental disorder.

The acquisition of rights by those with severe mental disorder

Two key developments in mental health services occurred during the
twentieth century at a different pace and timing in different countries,
both of which had implications for the rights of those with severe mental
218 The clash of rights
disorders. The first development involved policies to permit voluntary
admission of patients into asylums. The second involved the introduction of
policies of community care and a move away from the asylum altogether.
The idea of allowing individuals to be admitted into asylums or private
madhouses without the complex processes of certification was often under-
pinned in many Western countries by the desire to medicalise asylums and to
make them more like hospitals. Certification procedures had, as we have
seen, been formalised in an effort to ensure that the associated loss of liberty
on admission should only be applied when it was fully justified. But this
meant that mental problems usually had to be severe and well-established
before any person would be admitted. Asylums had become places of last
resort. Yet this was entirely contrary to medical philosophies that
emphasised the importance of trying to treat an illness as early as possible.
The Report of the British 1924–6 Royal Commission on Lunacy and Mental
Disorder made the point like this:

An anomaly which has much struck us is that except in the case of

registered hospitals and licensed houses the doors of our institutions for
the treatment of the mentally afflicted are closed to all but certified
cases. In order that a patient may qualify for the benefit of treatment in
any of the mental hospitals maintained with public money . . . he must
first be certified. But the pre-requisite of certification is that the patient’s
disease shall be so definite and well-established that he can be declared
by a medical practitioner to be actually of unsound mind and in a condi-
tion justifying compulsory detention. In the case of every other institu-
tion for the treatment of disease the aim is to get in touch with the
patient at the earliest possible stage of his attack and by care and treat-
ment to ward it off or at least to mitigate its effects. Not so in the case of
insanity.
(Royal Commission on Lunacy and Mental Disorder, 1926: 18–19)

Voluntary admission would circumvent this problem, though its introduc-

tion in the public asylums, which by then dominated asylum care, was
contingent on the willingness of government to accept and implement more
expansionist welfare philosophies and move away from viewing public pro-
vision as a matter of last resort. It was formally introduced in Britain in 1930
(along with changes in language in which asylums were renamed mental
hospitals), a year after the Poor Law system was formally abolished. How-
ever, as the extract from the commission’s report indicates, there had been
some use of voluntary admission for private but not pauper patients
before this date. In the USA a number of states had begun to pass laws
to permit voluntary admission towards the end of the nineteenth century
(Massachusetts was the first) and by 1924 twenty-eight states allowed
voluntary admission (Lunbeck, 1994: 83). In France voluntary admission
was first formally permitted in 1945.
 Mental disorder and human rights 219
Voluntary admission was not intended to replace compulsory admission.
It was recognised that there would continue to be cases where compulsory
powers were required because of the severity of the disorder, including issues
around dangerousness. But where patients were willing to be admitted com-
pulsory powers need not be deployed and the use of voluntary admission
spread rapidly in Britain, and became even more extensive when the 1959
Mental Health Act said willingness should be assumed unless the individual
was clearly and explicitly unwilling to be admitted (prior to this voluntary
admission was only to be used where a person actively consented to
admission).
The implications of voluntary admission for the rights of those admitted
are harder to assess. On the one hand, all such patients formally had
the right to discharge themselves, but against this it has to be noted that
psychiatrists could, if they thought discharge was undesirable, institute a
procedure for compulsory detention, and such a strategy would often be
successful. Consequently the threat of compulsory detention sometimes gave
patients little choice but to agree to admission and, once admitted, not to
discharge themselves except on medical advice. Moreover, those admitted
on a voluntary basis often in practice faced the same loss of rights as those
admitted compulsorily (initially their rights to refuse treatment were not
clearly specified and they could not vote). Yet against this it has to be said
that the introduction of voluntary admission not only reflected a change in
the perception of madness (now increasingly termed mental illness) but also
helped to change perceptions. In part this was because voluntary admission,
which was intended to facilitate the admission of those early in their illness,
encouraged the admission of those with less severe problems – persons
whose rights were harder to deny. The presence of such individuals almost
certainly helped to encourage greater awareness of the conditions experi-
enced by mental hospital inmates as well as of patients’ rights, especially
of those admitted on a voluntary basis. It is interesting, for instance, that
following the Second World War there was growing interest in documenting
the dehumanising qualities of asylum life, most obviously reflected in Erving
Goffman’s classic essays in the 1950s collected together as Asylums (1961),
but also in a range of studies on the mental hospital and the problems of
institutionalisation (Stanton and Schwartz, 1954; Barton, 1959).
In the post-war period there was also growing recognition of human
rights issues and the 1948 UN Declaration of Human Rights, was followed
in 1950 by the Council of Europe’s European Convention on Human Rights
and Fundamental Freedoms, which was subsequently incorporated into
the national laws of many European countries. While there is no specific
reference in the convention to health or health services there is a clause on
discrimination. Article 14 asserts that:

The enjoyment of the rights and freedoms set forth in this convention
shall be secured without discrimination on any grounds such as sex,
220 The clash of rights
race, colour, language, political or other opinion, national or social
origin, association with a national minority, property, birth or other
status.

This clause provides a potential basis for claims by those with mental dis-
order or other marginal groups whose rights are denied. Certainly during
this period there were increasing efforts in a number of countries to
strengthen the rights of those detained on a compulsory basis, and mental
health pressure groups were also set up.15 In Britain the 1959 Mental Health
Act gave patients the right to contest their admission by seeking to be
discharged through the framework of mental health review tribunals, and
the 1983 Mental Health Act further strengthened patients’ rights vis-à-vis
‘exceptional’ treatments such as ECT and psychosurgery. In the USA the
laws governing compulsory detention varied between states, but many states
began to strengthen patients’ rights. In addition to the impact of studies such
as Asylums on awareness of conditions in mental hospitals, the focus on civil
rights in the USA and Europe in the 1960s undoubtedly increased con-
sciousness of issues surrounding the rights of mental hospital patients. For
instance, the American psychiatrist and libertarian Thomas Szasz, in his
book Law, Liberty and Psychiatry (1963), argued that compulsory deten-
tion of those with mental illness was a form of imprisonment and an attack
on human rights.16 Increasingly, too, a range of authors and activists
emphasised the importance of listening to patients and new campaign
groups were formed, some exclusively for patients, calling for improvements
in the care and support of those with mental illness.
The second change of key importance was the policy of community care,
which began to be introduced at varying speed and intensity across Europe
and the USA from the mid-1950s. Narrowly defined, this was a policy of
providing facilities outside the hospital – small residential and rehabilitation
units – for those with more severe problems who were previously long-term
inmates in mental hospitals or might otherwise have ended up as long-term
inmates. More broadly it was a policy of providing mental health facilities
away from the old mental hospitals, not only for long-stay patients, but also
services such as outpatient clinics, drop-in centres, and acute and emergency
services (whether in units attached to general hospitals or in community
mental health centres – the US model) for those with less severe or acute
problems. Consequently, the policy of community care became associated
with plans to close down the old mental hospitals altogether, relocating
former inmates into smaller units or trying, where possible, to help indi-
viduals with mental health problems to manage in their existing environ-
ments. In the USA the mental hospital population reduced very rapidly
(from a 1955 peak of 559,000 state hospital inpatients to 137,180 in 1980
(Brown, 1985: 5)), new community mental health centres were opened and
state mental hospitals began to be closed. In Italy the policy changes were
even more sudden, with legislation passed in 1978 to close down all mental
hospitals. In Britain after a slow decline in inpatients from the mid-1950s,
 Mental disorder and human rights 221
a growing number of mental hospitals were closed from the 1980s
onwards.
A number of factors underpinned the development of community care,
including changing welfare regimes, the undermining of the pro-institutional
ideologies on which the asylum system had been founded, as well as belief in
the value of new drug treatments to control symptoms. However, instead of
the deinstitutionalisation envisaged by community care policies there has
frequently been a process of ‘trans-institutionalisation’, with those who
might formerly have stayed in mental hospitals ending up in nursing homes,
old people’s homes, secure units for patients considered dangerous and even
prisons. Significantly, much of this residential provision, where it exists, is
now increasingly owned and administered by the private sector rather than
the state. In the case of old people’s homes and nursing homes, legal powers
of detention may not be involved, but admission may be constrained by the
lack of alternative provision and residents may be subject to treatment
regimes that are in practice difficult to contest. In the case of secure units or
prisons, compulsory detention is involved and the individual’s rights are
curtailed, not only the right to liberty but also frequently the right to vote.
Not surprisingly, as the number of psychiatric beds has declined the propor-
tion detained on a compulsory basis has increased and frequently there has
been a shift to a higher proportion of male inmates.17 Moreover, even where
a patient is not compulsorily detained they may be subject to compulsory
treatment in the community. This is currently possible, for instance, in some
US states and in Australia and is under discussion in Britain.
There is also evidence that mental hospitals have been closed down with-
out adequate provision of alternative services, with the consequence that
those with severe mental health problems have faced neglect and some have
ended up on the streets (Dear and Wolch, 1987; Knowles, 2000). This
raises the wider issue of the extent to which those with mental health prob-
lems have adequate access to care and support in dealing with their prob-
lems. This, of course, is a matter of the social rights of those with such
problems, not their civil or political rights. There is considerable evidence
that such rights have been neglected and that there have often been
inadequate services (mental health services are frequently the Cinderella
services within welfare provision). One aspect of this neglect is the heavy
reliance on psychiatric drugs to deal with mental health problems and
the absence of much in the way of alternatives – for instance, psychotherapy
or various forms of social support. This absence is an especial problem
given that many psychiatric problems have their underlying causes in the
conditions and circumstances people face in their everyday lives.
In this context it is important to note that mental health problems are not
evenly distributed across the population but vary according to social class,
ethnicity and gender. Numerous studies have shown, for instance, a clear
link between social class (measured in various ways) and mental ill-health in
a wide range of societies (see, for instance, Hollingshead and Redlich, 1958;
Robins and Regier, 1991; Meltzer et al., 1995), and it is interesting that the
222 The clash of rights
links with social class even apply to forms of cognitive brain impairment
such as Alzheimer’s disease (Evans et al., 2003). Studies also show that these
associations are typically the product of psycho-social processes, including
the uneven distribution of long-term difficulties, adverse situations and
personal circumstances (see, for instance, the classic study by Brown and
Harris, 1978) – a point recognised in the reference in UN article 25 (1) to the
right to a standard of living adequate for health and well-being.18
We also need to note that the infringement of other human rights, such as
the right not to be ‘subject to torture or to cruel, inhuman or degrading
treatment or punishment’ (UN Declaration: article 5), is usually highly
traumatic for the individual and can generate severe psychological prob-
lems. Although not specifically mentioned in article 5, sexual violence and
abuse, such as rape, is one form of infringement of an individual’s rights that
needs to be included in any listing of inhuman and degrading treatment.
There is now, for instance, a wide range of evidence of the adverse impact of
child sexual abuse, which may be long term (Browne and Finkelhor, 1986;
Beitchman et al., 1992). Significantly, the impact of extreme events on psy-
chological health is recognised through older illness categories such as shell-
shock, as well as newer ones such as post-traumatic stress disorder (PTSD),
although the range of mental disorders generated by traumas like these is far
wider.19
Such issues return us to Marshall’s and Lockwood’s interest in the inter-
section of citizenship and social stratification. On the one hand, individuals
with severe mental disorder may face a loss of rights, especially if they need
residential treatment. On the other hand, their disorder may itself be partly
generated or sustained by the denial of moral and material resources for
adequate conditions of living or by inhuman and degrading treatment, as
well as lack of adequate and appropriate mental health services. In that
respect those with severe mental health problems can face a dual disadvan-
tage: adverse circumstances may underpin their mental disorder and then, as
a result of their disorder, they may be denied specific human rights.

Conclusion
Individuals with severe mental health problems have long faced poor treat-
ment, have often been confined on the grounds of public protection and have
usually been excluded from the human rights that most other groups have
gradually acquired. Irrationality and unreason, which have been at the heart
of lay and professional judgements of madness and severe mental disorder,
have been seen as denying full humanity to the individual and have legiti-
mated the denial of well-established rights. Instead, those with severe mental
disorders have frequently been stigmatised, marginalised and treated as
social outcasts and subject to discrimination.
To some extent the wider acquisition of human rights in Western societies
has over time helped to improve the rights of those with severe disorders.
 Mental disorder and human rights 223
Their powers to contest detention and to challenge extreme forms of treat-
ment have been enhanced, and some have been allowed the right to vote.
Overall, however, services for those with mental health problems have often
been neglected and their social rights downplayed. Moreover, severe mental
health problems may themselves result from the infringement of human
rights. While human rights are supposedly universal rights, in practice this is
often not the case, and those with severe mental disorder all too frequently
face exclusion from many human rights prior to, and during, their disorder.

Notes
1 R. D. Laing (1967) sought to argue that although the behaviour of individuals
might be judged irrational, in fact it was intelligible if the situation was carefully
examined from the point of the individual concerned.
2 Discussing the concept of psychosis, the DSM-IV comments ‘Finally, the term
has been defined conceptually as a loss of ego boundaries or a gross impairment
in reality testing’ (American Psychiatric Association, 1994: 273).
3 The term mental disease is an older one; it is linked with the earliest involvement
of doctors and can be traced back to ancient Greece.
4 While the term mopish is now more or less archaic we do still use the verb to
mope and talk of people ‘moping’ and ‘moping around’.
5 It is possible to argue, however, that some irrationality is still involved (see
Busfield, 1996: 69–75).
6 In Britain the formal change was made in the 1930 Mental Treatment Act.
7 Lay understandings already incorporated a wide range of ‘psychological’
problems, such as being ‘troubled in mind’, which was clearly differentiated
from madness.
8 Along with the International Classification of Diseases’ section on mental
disorders, this is a very widely used official psychiatric classification.
9 The problem with this argument is that ‘normal’ reactions can still be
dysfunctional.
10 It is interesting that this lecture followed the year after the 1948 publication of
the UN Universal Declaration of Human Rights.
11 William Cullen, First Lines in the Practice of Physic, 4th edn, 1784 (Hunter and
MacAlpine, 1963: 473–8).
12 In fact many of those admitted were discharged relatively quickly.
13 Daniel Defoe, writing in 1728, attacked private madhouses because of the
dangers of wrongful detention (Hunter and MacAlpine, 1963: 266–7).
14 Dangerousness is not a criterion for compulsory detention in all European coun-
tries (European Commission, 2002)
15 In Britain the National Association for Mental Health (later MIND) was formed
in 1946 (Crossley, 1998).
16 He later used the phrase ‘a crime against humanity’ (Szasz, 1970).
17 This is partly linked to issues around dangerousness, which more typically
involve men, but also because of the use of such units for those with severe
problems with alcohol or drugs.
18 Biological factors play a part in the causal mechanisms linking psycho-social
stress and mental disorder, and part of the dispute about biological and
psycho-social explanations of mental disorder is about what counts as an
adequate causal account.
19 The presence of PTSD in current psychiatric classifications is significant, given
the explicit desire to eschew aetiological assumptions in these classifications.
12 Free to speak, free to hate?
Paul Iganski

Legal instruments against manifestations of racism in the form of ‘hate

speech’ and ‘hate crime’ confront a dilemma in striking a balance between
the potentially conflicting right to freedom of expression (and by implication
the thought and opinion behind expression) and the right to freedom from
discrimination and victimisation on the basis of ‘racial’, ethnic or religious
identity. The UK Labour Government elected in 1997 after 18 years of
Conservative Party rule began to institute a radical legislative agenda against
racist hate. After nearly a decade in power it is instructive to evaluate how
the balance between these rights has been negotiated by the Labour Govern-
ment. Although it is not quite the time yet for an ‘end of term’ report, such
a review serves to illuminate the ways in which rights are brought into
conflict when legal instruments are used against racist hate and other forms
of bigotry. Furthermore, when examined through the sociological lens of
expressive theories of punishment, the Labour Government’s approach to
criminalising racist hate provides an instructive case study of how a state can
aim to promote a collective moral consciousness through the denunciation
of racist hate through the criminal law, within the constraints of a dominant
normative value of the right of citizens to freedom of expression.
In 1997, the new Labour Government was elected with a manifesto
commitment to review legislative provisions against racist violence. It put
its commitment into action in the 1998 Crime and Disorder Act, which
established provisions for racially aggravated offences to enable more severe
punishment of offences that are racially motivated, as well as offences in
which there is manifest racial hostility. The provisions were shaped by
policy learning on so-called hate crime laws in the USA, where most states
(and the District of Columbia) have established statutes that punish
offenders more severely when their crimes are motivated by prejudice
against the race, religion, sexual orientation, gender, disability, age or polit-
ical affiliation of their victims, although not all of these ‘categories’ are
covered by legislation in all states.
So called ‘hate speech’ plays a significant role in the conceptualisation of
hate crime under the British provisions, as words that the offender uses
while committing the offence – racial abuse or racist epithets, for example –
 Free to speak, free to hate? 225
or uses immediately before or after the offence is committed, provide a
prime indicator of manifest racial hostility. This raises fundamental ques-
tions of social justice, as evidence used to secure a conviction for a racially
aggravated offence, things that the offender says before, after or while
committing the offence, are not likely to be intrinsically unlawful. The
prosecution of racially aggravated offences would therefore at first sight
appear to constitute restrictions on freedom of expression and thought,
which are not a priori proscribed. There are few circumstances where
racist speech is proscribed in Britain and they are only where the speech
arguably takes the form of an act, as in instances of incitement to racial
hatred (1986 Public Order Act), chanting at a football match (1991 Football
Offences Act) and the use of threatening, abusive or insulting words that
threaten, provoke or generate a fear of violence (1996 Public Order Act,
sections 4 and 5).
The impetus for legislation to establish racially aggravated offences in
Britain came in part from the consistent rise in the number of racist incidents
reported to the police across the 1990s, and Home Office commissioned
British Crime Survey evidence revealing a far great number of racist inci-
dents than captured by police records (Aye Maung and Mirrlees-Black,
1994; Percy, 1998; see also Virdee, 1997). (An apparent escalation of racist
attacks across a number of European countries in the late 1980s and early
1990s (Commission of the European Communities, 1993) similarly provided
the impetus for policy exhortation for the European Union.) Abhorrence
against violence and other incidents motivated by racism appeared to pro-
vide a broad consensual support for legislation in Britain, as evidenced in
particular by the reaction to the racist murder of Stephen Lawrence in South
London in 1993. However, courts had not been fully using the powers avail-
able to them in disposing of offences involving racial aggravation. Penalty
enhancement for racial aggravation was enabled by the 1991 Criminal Just-
ice Act (sections 3(3) and 7(1)) and an explicit lead was provided in 1995 by
the then Lord Chief Justice in R v. Ribbans, Duggan and Ridley ((1995)
16 Cr App R(S) 698) for ‘a proven racial element to be taken into account as
an aggravating factor when sentencing’. However, a study by the Crown
Prosecution Service for 1997–98 observed that in only 22 per cent of cases
studied where racial motivation was a factor were sentences enhanced by the
courts (Press Release 146/98, 20 October). Such inconsistencies in the
treatment of convicted offenders generated suspicions that the courts were
institutionally insensitive to racist incidents. In this vein, the Association of
Directors of Social Services in their response to the consultation paper pre-
paring the way for the provisions for racially aggravated offences in the
1998 Crime and Disorder Act argued:

It is necessary for the Criminal Justice System to repudiate charges that

it produces discrimination in the way it delivers its service to ethnic
groups. Inconsistencies in applying the Ribbons judgement have done
226 The clash of rights
nothing to aid this course, and the proposed legislation does give a clear
statement of intent in how seriously racially motivated offences will be
treated in future.

Similarly, the Association of Chief Officers of Probation argued:

The fact that racial crime is being taken so seriously may assist in
rebuilding confidence in the criminal justice system on the part of mem-
bers of ethnic minority communities. However, the extent to which that
is achieved will also depend heavily on how those involved in the crim-
inal justice system implement and respond to the spirit and intention of
the legislation, and are seen to take it seriously.
(Iganski, 1999: 391)

In the wake of concern about Islamophobic incidents in Britain following

the terrorist attack on the World Trade Center and the Pentagon in September
2001, Britain’s hate crime provisions were extended under the 2001
Anti-Terrorism, Crime and Security Act to cover religiously aggravated
offences. These provisions addressed a loophole in British law, as Muslims
are not recognised as a ‘racial’ group – as defined by the 1976 Race Rela-
tions Act – and hence hate crimes committed against them without manifest
racial motivation or hostility were beyond the remit of provisions against
racially aggravated offences. The new religiously aggravated offences crept
in without opposition under cover of the controversy over government plans
– subsequently suspended until a recent resurrection – to establish provi-
sions against incitement to religious hatred. In an exemplar of ‘domain
expansion’ (Jenness and Grattet, 2001: 98) the provisions against racially
and religiously aggravated offences were extended even further under the
2003 Criminal Justice Act (section 146), to enable penalty enhancement in
offences where at the time of committing the offence, or immediately before
or after it, the offender demonstrates hostility based on the sexual orientation
(or presumed sexual orientation) of the victim, or a disability (or presumed
disability) of the victim. Again, words spoken by the offender provide a
prime indicator of manifest hostility.
A review of provisions against incitement to religious hatred and possible
legislation against Holocaust denial were also on the policy agenda of the
incoming Labour Government in 1997, although they were not stated in
the Labour Party’s election manifesto. These provisions involve potentially
more tenuous connections between ‘hate speech’ and ‘hate crime’ than the
provisions for racially aggravated offences and they have not attracted the
same degree of consensus. They throw into much greater relief the conflict
between rights to freedom of expression and rights to freedom from victim-
isation on the basis of racial, ethnic and religious identity when legislating
against bigotry, as evidenced by the considerable controversy generated by
government plans to outlaw incitement to religious hatred. The controversies
 Free to speak, free to hate? 227
and conflict over rights involved in each of these measures are unfolded in
more detail below.

The hate crime law debate

Opposition to hate crime laws in the USA has been longstanding and
persistent, and it is instructive to consider the debate. Two major objections
are raised by critics. First, with an eye to the fundamental human right to
freedom of expression (as enshrined in the First Amendment to the US
Constitution, for instance), opponents argue that the additional punishment
meted out by the courts for hate crimes, constitutes the punishment of ideas
(Gey, 1997), ‘bad character’ (Hurd, 2001), ‘improper thinking’ and ‘extra
punishment for values, thoughts, and opinions which the government deems
abhorrent’ (Jacobs and Potter, 1997: 10). Bigoted speech, and the thought
behind it, provides the main indicator of motivation behind hate crimes.
Therein lies the problem. Without a predicate – or underlying – offence, hate
speech is generally protected in the USA. By implication, the thoughts that
the speech manifests are protected too. One recent critic, Tammy Bruce,
argues that hate crime laws involve ‘the actual criminalization of the most
private, personal, and subjective part of our lives – what we think’, and
she consequently suggests that the laws amount to ‘totalitarianism in its
purest form’ (Bruce, 2001: 45–6). A similar allegation has been levelled
by one of the few public critics of hate crime laws in Britain, columnist
Melanie Phillips, who argued that they are an ‘Orwellian response to
prejudice’ (Phillips, 2002).
The second major objection raised by opponents of hate crime laws in
the USA concerns the equitable treatment of crime victims by the criminal
justice system. Critics suggest that the laws establish a hierarchy of victims
in otherwise identical crimes. Columnist Jeff Jacoby has argued that ‘In a
society dedicated to the ideal of “equal justice under law” – the words are
engraved over the entrance to the Supreme Court in Washington, DC – it is
unjust and indecent for the statute books to enshrine a double standard
that makes some victims more equal than others’ (Jacoby, 2002: 116). On
a personal note, Tammy Bruce again forcefully argues that ‘As a gay
woman, I refuse to be part of a system that tells me that I count more
than any other woman who gets raped or murdered’ (Bruce, 2001: 39). In
view of such objections, it is a paradox that the argument of equity for
crime victims has also been used in support of extending hate crime laws.
Prior to the provisions of the 2003 Criminal Justice Act enabling penalty
enhancement in cases where the offender demonstrates hostility on the
basis of the sexual orientation of the victim, human rights activist Peter
Tatchell argued that ‘the British government proclaims equality for all, but
legislates greater equality for a few. . . . Instead of cracking down on all
prejudice inspired attacks, the official British government policy on hate
crimes seems to be that some victims should be granted privileged legal
228 The clash of rights
protection and that all other victims should be ignored’ (Tatchell, 2002:
54, 55).
The debate about the justification of hate crime laws rarely deviates from
the liberal foundation upon which the arguments have been built, as even
advocates of the laws ardently defend the right to freedom of speech by
arguing that expression, the thought behind the crimes, or motivation, are
not being punished (see Iganski, 2001). Instead, supporters argue that the
laws impose greater punishment for the greater harms they believe are
inflicted by hate crimes (cf. Weinstein, 1992; Lawrence, 1999; Levin, 1999).
From this viewpoint, the thought behind the crime, as perhaps manifest in
the words that are spoken while committing the act, is only relevant to
determine whether the particular act committed is a type of act – a hate-
motivated crime – that inflicts greater harms than the type of act – the same
conduct, but otherwise motivated – that causes lesser harms.
Problematically, however, there is arguably little authoritative evidence
about the nature of the alleged harms inflicted by hate crimes over and above
the underlying crimes, and arguably what actually hurts is the thought
behind the crime. This is evident if the alleged harms inflicted by hate crime
offenders are critically unpacked. To take physical injuries as a result of
crime, for instance, some advocates of hate crime laws have suggested that
hate crimes are more likely to involve ‘excessive violence’ (Levin, 1999: 15),
cause injury and lead to hospitalisation than criminal assaults in general
(Levin and McDevitt, 1995; Levin, 1999: 15). The empirical evidence to
support these claims is weak, however, and intuitively the claims are less
than convincing. It would be remarkable if every violent crime of a particular
type – say grievous bodily harm – resulted in greater injury when motivated
by ‘hate’ than when otherwise motivated. Even if the majority of hate crimes
inflict more serious injuries it would surely be unjust to punish more severely
an individual perpetrator of a hate crime that did not result in greater injury
because on average hate crimes inflict more injuries. Those hate crimes
that do inflict greater physical injury deserve more severe penalties, but
such crimes do not justify the establishment of a category of punishment
beyond the particular circumstances of any particular criminal incident.
Logically, crimes that do inflict greater physical harms will be prosecuted at
the appropriate level. The same considerations apply to emotional injuries.
Arguably, to justify more severe punishment of hate crimes on the basis of
emotional harm it would need to be demonstrated that they normally inflict
greater emotional injury on the victims than identical but otherwise motiv-
ated crimes. While there has been some research on the psychological and
emotional impact of hate crimes that indicates the effects upon victims,
overall the findings are equivocal on the question of whether or not hate
crimes always hurt more at the emotional level. For instance, Herek et al.
(1999) compared a purposive sample of lesbians and gay men who had been
victims of bias crimes (n = 69) with a sample (n = 100) who had been
victimised on grounds other than their sexual orientation. They observed
 Free to speak, free to hate? 229
that the hate crime victims recorded statistically significant higher scores on
measures of depression, traumatic stress and anger. However, while their
data reveal that on average victims of hate crimes suffer more emotional
harms, the evident variation in the scores indicates that not all victims
experience harm to the same extent, and potentially that some victims of
hate crimes suffer less emotional harm than some victims of similar but
otherwise motivated crimes.
In turning to another type of harm, hate crimes arguably send out a
terroristic message to members of the victim’s group in the immediate
neighbourhood and beyond. In the words of one commentator, ‘violence
constitutes a threat of more violence to minority group members’ (Weinstein,
1992: 8). The terroristic harms generated by hate crimes arguably spread
beyond the individual to the initial victim’s ‘group’ or community in the
wider neighbourhood community. They are also likely to spread to others in
the ‘group’ who know the victim and hear of their experience, and who may
live beyond the initial victim’s neighbourhood. Other persons who share the
victim’s characteristics – and come to hear of the victim’s plight – may
potentially be affected by a hate crime. Research carried out in Britain in the
mid-1990s demonstrated the wider behavioural impact in question. The
Fourth National Survey of Ethnic Minorities (Modood et al., 1997) revealed
that nearly one-quarter of black and Asian respondents worried about being
‘racially harassed’, and 14 per cent of the respondents reported having taken
measures to avoid potential harassment. Measures ranged from avoiding
going out at night – the most commonly reported behavioural response – to
changes in leisure activity (Virdee, 1997: 284–5). A larger proportion of
respondents ‘reported being worried about racial harassment than had
experienced it in the last year’. A conclusion drawn was that this ‘suggests
that the impact of having suffered some form of racial harassment at any
time in the past, or having heard about an incident of racial harassment
even though it may be unrelated to the respondent themselves, can still have
an influence in creating an atmosphere of fear and anxiety’ (Virdee, 1997:
284–5). However, again, justification of the punishment of hate crimes as a
separate class of crimes needs to be supported by evidence that the terroristic
impact of a hate crime usually goes above and beyond the impact of the
underlying – but otherwise motivated – crime. Unfortunately, the research
design of the Fourth National Survey did not permit such a comparison as
questions on crime victimisation solely focused on racially motivated crime.
It might be thought that the contest between the opposing sides in the hate
crime debate might be resolved by empirically determining whether hate
crimes do actually hurt more than the same underlying, but otherwise
motivated, crimes. Yet there is a fundamental flaw in this contest, as Kahan
(2001) has argued. Opponents of hate crime laws who propose that the laws
are illegitimate because they take the offender’s values into account in
determining punishment (and thereby amount to ‘thought crimes’), when
the criminal law generally does not, face the problem that the criminal
230 The clash of rights
law does commonly use an offender’s motivating values to determine the
seriousness of the offence and the appropriate punishment. Alternatively,
proponents of punishing hate crimes on the basis that they inflict greater
harms – not because of the thought behind them – face the problem that
the greater harms inflicted involve, in many instances, an aversion to the
offender’s values. As one commentator has argued, the motivation of the
hate crime offender ‘violates the equality principle, one of the most deeply
held tenets in our legal system and our culture’ (Lawrence, 1994: 365). But
more severe punishment of hate crimes – compared with parallel crimes – on
the grounds that they offend societal values can amount to nothing else than
punishing the bad values of the offender. While this is conceding the argu-
ment of opponents of hate crime laws, their position is weakened by the
common criminal law use of offenders’ motivating values to determine the
seriousness of an offence and the appropriate punishment (Steiker, 1999;
Kahan, 2001). The fact that self-defence, for instance, is seen as a mitigating
factor in terms of culpability for a crime even though the consequences of
the crime might be identical to the same offence committed out of malice,
indicates that ‘good’ – or normatively desirable – values are rewarded, and
‘bad’ values punished. As Kahan (2001: 193) argues: ‘Conceptually and
practically speaking it is impossible to draw a distinction between the harms
that violent criminals inflict and the values that motivate them to act. Hate
crime laws do punish offenders for their aberrant values in this sense. But so
do the rest of the provisions that make up the criminal law. It’s impossible to
imagine things otherwise.’ Offenders’ values are not inviolable, then, when
it comes to the application of the criminal law, although in the case of ‘hate
crimes’ aberrant values are only punished when they accompany an other-
wise criminal act. The association between speech and action is weakened in
the case of racist hate speech, however, and hence attempts to criminalise
such speech have attracted greater controversy than hate crime provisions.

Hate speech and the incitement of hatred

Denial of the historical facts of the Holocaust might be regarded as a specific
case of hate speech where the words used inflict a unique injury.1 Towards
the end of the 1990s a confluence of events occurred that arguably made the
British government more receptive than at any time in the past to criminalis-
ing Holocaust denial. The libel case lost by David Irving in the High Court
in London brought the problem of Holocaust denial into the public con-
sciousness with a potency that it had never had before. Professor Deborah
Lipstadt, Director of Judaic Studies at Emory University, Atlanta, was sued
by Irving for alleging in her book Denial of the Holocaust that ‘Irving is one
of the most dangerous spokespersons for Holocaust denial’ (Lipstadt, 1994:
181). Lipstadt was not alone in her view. In an early day motion in the
British Parliament’s House of Commons in 1989 Irving was described as a
‘Nazi propagandist and long-time Hitler apologist’.2 The libel trial brought
 Free to speak, free to hate? 231
into the public consciousness the political agenda behind Holocaust denial.
Trial judge Charles Gray, for instance, concluded that Irving ‘is antisemitic
and racist and . . . associates with right wing extremists who promote neo-
Nazism’ High Court Judgement 11 April 2000, para. 13.167. As matters
stood, the absence of a Holocaust denial law in Britain set the country
against the trend of its European neighbours, such as Austria, Belgium,
France, Germany, Spain and Switzerland, which have all outlawed Holo-
caust denial. And at the supranational level in Europe, in 1995, while the
last Conservative government held office in Britain, the European Parlia-
ment’s Kahn Commission proposed that all member states should establish
specific offences of Holocaust denial and the trivialisation of other crimes
against humanity. The pressure from Europe met an incoming Labour
government that was far more receptive than previous governments to the
idea of outlawing Holocaust denial. While the Labour Party was in oppos-
ition it passed a motion at its annual conference in 1996 calling for a Labour
government to ‘make it a criminal offence to publish, broadcast, distribute
or display any material for the purpose of denying the Holocaust’ (Bristow,
2000). One year later, Labour Member of Parliament Mike Gapes intro-
duced his Holocaust Denial Bill to the House of Commons. Despite some
cross-party support it was allotted insufficient parliamentary time under
the presiding Conservative government and failed. The incoming Labour
government stalled in its enthusiasm to establish a specific Holocaust denial
law to consult with representatives of Britain’s Jewish communities (Travis,
1999).
Significantly, the Institute for Jewish Policy Research (IJPR) (a leading
‘think tank’ on Jewish affairs in Britain) made its recommendations about
punishing Holocaust denial in June 2000 in a report presented to the then
Home Secretary Jack Straw (IJPR, 2000). The report was written by a panel
of legal experts chaired by high-profile lawyer Anthony Julius, who served
as counsel for the defence in the Irving–Lipstadt trial. The report was based
on some 18 months of research, written and oral inquiries and testimony
from historians and Holocaust survivors. The conclusion: a Holocaust denial
law in Britain would be ‘inadvisable’. Instead, the panel recommended that
consideration be given to amending the provisions against incitement to
racial hatred. Alternatively, it recommended enacting a new law that would
cover Holocaust denial under hate speech provisions more broadly. This
was not the first time that recommendations had been made to amend
Britain’s provisions against incitement to racial hatred to enable prosecution
of Holocaust denial. Similar recommendations were made in a report pub-
lished by the Board of Deputies of British Jews, the representative body of
Anglo-Jewry, in 1992 (Board of Deputies of British Jews, 1992).
The case for incorporating Holocaust denial into incitement to racial
hatred provisions lies in the political context in which Holocaust denial
operates. It is commonly argued that enactment of a specific Holocaust
denial law would inevitably stimulate a welter of competing political claims.
232 The clash of rights
To support such a view one need look no further in Britain than the media’s
reaction to the Home Secretary’s announcement in January 2000 declaring a
National Holocaust Memorial Day. Why, the pundits wanted to know,
should the integrity of the memory of the Holocaust be protected when
other acts of genocide and historical tragedies are forgotten and even dis-
torted? What about the slaughter of Armenian Christians by Ottoman Turks
in 1915? Or the crimes of the African slave trade? One correspondent to
the Guardian posited that ‘Jewish victimhood’ was used to justify ‘Israeli
aggression and oppression’, thereby warranting as well a public commemo-
ration of the exile of the Palestinian people. And this was only potentially
the tip of the iceberg. If denial or distortion of the facts of these tragedies
is not outlawed, the argument goes, supporters of a Holocaust denial
law would need to defend the selective use of law for some historical
tragedies but not others. Lawrence Douglas (1988: 71) has made this
point more emphatically: ‘Why would the state provide the facticity of the
Holocaust a degree of legal insulation not offered other facts? By proscrib-
ing Holocaust denial in specific, doesn’t the liberal state abandon its putative
neutrality in order to protect the sensitivities of a particular group within a
heterogeneous community?’ The IJPR also recognised this dilemma. As
stated in its report:

In Britain, where Jews comprise but one of a large number of diverse

minority groups, the existence of a Holocaust-denial law might likewise
be expected to provoke calls for it to be extended to cover other instances
of denial. If such calls were heeded, it is difficult to imagine where and
on what basis the limits of the law would eventually be set. If, con-
versely, the law continued to restrict itself to Holocaust denial, British
Jews would face the accusation that they were demanding and receiving
special treatment.
(IJPR, 2000: 24)

Perhaps the strongest argument of all against Holocaust denial legislation

is the conflict it creates between its intent on the one side to curb the assault
on historical truth and the emotional damage it does to survivors and their
families, and on the other side, claims by deniers to rights to freedom of
expression. Holocaust deniers regularly exploit free speech by portraying
themselves as its first victims. Irving pursued a similar angle when he sought
to argue his case on the back of claims to freedom of expression. The IJPR
law panel recognised this fundamental dilemma in its key objection to
Holocaust denial law. Instead it proposed the outlawing of Holocaust denial
by the back door by amending Britain’s incitement to racial hatred – or ‘hate
speech’ – provisions. Such a course of action, though, would have marked
a significant departure from past legislative tradition, and was not sub-
sequently adopted by the Labour government. It is most useful to review
that tradition, as it informs analysis of the most recent conflict over rights
 Free to speak, free to hate? 233
involved in the government plans to establish legal provisions against
incitement to religious hatred.
Hate speech has been largely protected in Britain unless it is associated
with public disorder or an underlying crime, as in the case of racially
aggravated offences as discussed above. Existing provisions against hate
speech – or ‘incitement to racial hatred’ as it is called by law – make it an
offence for a person to publish or distribute written matter, or use words in
any public place or public meeting, provided they are threatening, abusive or
insulting. Additional preconditions for prosecution are an intent to stir up
racial hatred or, alternatively, the likelihood for hatred to be stirred up
having regard to all the circumstances.3
Historically, prosecutors have found the incitement prerequisites difficult
to prove. As a result, in an effort to find stronger means to combat Holocaust
denial, the IJPR panel, while adhering to its arguments against special legisla-
tion to combat it, sought their ‘third way’. They proposed removing the
‘threatening, abusive and insulting’ prerequisite as a condition for prosecu-
tion – words the IJPR jurists saw as inhibiting the process of bringing
Holocaust deniers to judgement. This proposal, if it had been accepted,
however, would have had radical consequences. The words ‘threatening,
abusive or insulting’ are there for good reason. They reflect a concern,
reiterated by government each time the incitement provisions have been
reviewed, to protect freedom of expression unless disorder is threatened.
This was made clear in parliamentary discussion of the failed Holocaust
Denial Bill introduced by Mike Gapes MP in 1997. The then Home Office
Minister responsible for race relations, Timothy Kirkhope, observed that
‘Parliament concluded that the freedom to express minority views should be
preserved – however repugnant those views may be – except when public
order and safety are threatened.’4
There is a long historical precedent in Britain for the protection of freedom
of expression, unless there is a threat of disorder. Legislative provisions
specifically against incitement to racial hatred were first established by
Section 6 of the Race Relations Act 1965. The primary justification provided
by the government sponsor of the provisions for restrictions on speech was
the threat allegedly posed to public order by the speech in question (Wolffe,
1987: 345). The provisions of the Act were not unprecedented. It had long
been possible to invoke the criminal law against persons who incite racial
hatred, but only if it was likely to lead to violence or a breach of the peace.
Before the 1965 Race Relations Act there had been prosecutions for sedi-
tious libels that involved incitement to racial hatred. Cases that succeeded
involved actual violence, or the likelihood of violence. The Public Order Act
1936 was also used against incitement to racial hatred. The connection to
violence is clear. The Act was introduced to deal with public disorder associ-
ated with clashes in London’s East End at the time between supporters of the
British Union of Fascists and their opponents (Lester and Bindman, 1972:
350; Supperstone, 1981: 5).
234 The clash of rights
When the 1965 Race Relations Act was reviewed, the then Labour
government was emphatic about its support of the principle of freedom of
expression, the only exception being where public order was threatened.
The White Paper preparing the way for new race relations legislation stated
the government’s view that it was ‘not justifiable in a democratic society to
interfere with freedom of expression except where it is necessary to do so for
the prevention of disorder or for the protection of other basic freedoms’.5
The resultant 1976 Race Relations Act removed the provisions against
incitement to racial hatred from the remit of race relations legislation
altogether and incorporated them into public order law. When that law was
in turn later reviewed in 1985 the then Conservative government stated its
own support for the principle of freedom of expression. It believed that ‘the
reasonable exercise of freedom of expression should be protected, however
unpleasant the views expressed’.6
Under the incitement provisions currently in force and established by
the 1986 Public Order Act there have been no prosecutions specifically
for the production or distribution of Holocaust denial material, or any
other Holocaust denial activity. It is instructive to consider exactly why
this has been the case. It helps to understand the potential ramifications
of classifying Holocaust denial as incitement – which the JPR jurists
wished to do.
Chiefly, those words, ‘threatening, abusive or insulting’, which have
prevented the prosecution of Holocaust denial, have arguably been regarded
by prosecutors as ‘representing a descending order of violence’ (Williams,
1970: 108). The word ‘insulting’ is perhaps at the minimal end of the con-
tinuum of violence represented by these three words. But its situation in
public order legislation arguably infers that insulting words – as well as
words that are threatening and abusive – must intrinsically be liable to pro-
voke a physical reaction or severe hostility among a reasonable audience,
irrespective of the context in which they are used. By understanding this it is
arguably possible to comprehend the last Conservative government’s atti-
tude towards Holocaust denial. In parliamentary discussion of the 1997
Holocaust Denial Bill it was observed that in the view of the Crown Prosecu-
tion Service ‘it is possible to prove that such literature is offensive and
untruthful, but it is not possible to prove that it is insulting’.7 The vast
majority of people would surely regard Holocaust denial as an insult. But it
cannot be so classified legally.
Holocaust denial remains outside the scope of legal recourse because it is
not usually characterised by aggressive or profane expression. It is commonly
couched in reasonable language and frequently presented in an academic
style. For instance, David Irving, in his introduction to the Leuchter Report,
a leading contribution to Holocaust denial literature, alleges that ‘Too many
hundreds of millions of honest, intelligent people have been duped by . . .
the propaganda story that the Germans were using “gas chambers” to
kill millions of Jews and other “undesirables” ’.8 But it would be a severe
 Free to speak, free to hate? 235
distortion to allege that Irving’s words, and some of the foremost works of
Holocaust denial, such as The Hoax of the Twentieth Century or Did Six
Million Really Die?, would provoke a violent response, even among those
hurt and offended by the material.
However, while words have to be ‘threatening, abusive or insulting’ to
warrant prosecution as incitement to racial hatred, the Board of Deputies of
British Jews – in their deliberations on Holocaust denial law – argued that
Britain’s incitement provisions do not require an immediate breach of the
peace. In their view ‘over a period of time racist words or conduct can
“beget violence” although they may not present a clear and immediate
threat of violence and disorder’ and ‘such conduct will ultimately of itself
create a climate of public opinion or influence public attitudes or behaviour
in a way which threatens tranquility and order within society’ (Board of
Deputies of British Jews, 1992: 29–30). Although it is not stated in the same
way, it can safely be inferred that the same assumption lay behind the IJPR’s
recommendation for the ‘threatening, abusive or insulting’ precondition to
be removed. Their assumption may have been correct. But once conceded as
grounds for prosecution it would set a dangerous precedent. Many public
utterances expressed as part of mainstream political discourse arguably
contribute to a climate of racist violence and hatred by having a cumulative
effect over time. Such utterances may even conceivably provoke racist
violence among those who are predisposed to such behaviour. But clearly
a line has to be drawn to protect rights to freedom of expression and a
tangible connection between violence and the words that provoke it argu-
ably provide such a line. Given this context, the most recent controversy
over government plans to establish a new offence of incitement to religious
hatred – modelled on the law against incitement to racial hatred – can be put
into perspective.
Although the provisions will apply to all religions, they have commonly
been regarded as offering special protection to Muslims,9 and indeed repre-
sentative bodies of Muslim communities in Britain such as the Muslim
Council of Britain and the Muslim Public Affairs Committee have supported
the measures. At the most basic level the provisions close a loophole in
British law, as Muslims are not recognised as a ‘racial’ group – as defined
by the 1976 Race Relations Act – and hence incitement targeted against
them has fallen outside the scope of the legislation against incitement to
racial hatred. In its memorandum to the House of Commons Home Affairs
Committee (Session 2004–5, House of Commons Paper No. 165, Memo-
randum 27) the Muslim Public Affairs Committee UK argued that legislation
is needed

to provide Muslims with equal protection to other minority groups who

are already protected under the Race Relations Act – including protec-
tion from incitement to hatred. (Extending this protection to Muslims
would be consistent with the inclusion of Jews as a group protected
236 The clash of rights
under the Race Relations Act who, like Muslims, are a group with
diverse geographical origins but sharing a common religious heritage).

And in their memorandum to the Home Affairs Committee (Session 2004–5,

House of Commons Paper No. 165, Memorandum 26) the Muslim Council
of Britain expressed their concern with the

lack of protection that is afforded to the Muslim community per se. The
lack of legislation protecting followers of multi-ethnic faiths such as
Islam and the failure to outlaw incitement to religious hatred exposes one
of the most vulnerable and marginalized minorities in the UK to further
harm and contributes to the ensemble of factors that lead many to
conclude that Muslims are discriminated and victimized by the current
spate of anti-terror measures. Our democracy is deficient for its want of
protection for a minority actively discriminated against and mainstream
legislation is clearly its proper place . . . it is important that all minorities
are equally protected, not least the one that is most disaffected.

Some commentators suggested that plans to introduce the measures were

part of the Labour government’s electoral strategy to harness the support of
Muslim communities in some key parliamentary constituencies. Comedian
Rowan Atkinson, for instance, a prominent critic of the measures, argued in
a speech to the House of Lords10 in January 2005 that:

I don’t doubt the sincerity of those who are seeking this legislation but I
do question the government’s enthusiasm for it so close to a General
Election, an enthusiasm that must be rooted in their belief that this
measure could help their cause in some marginal constituencies with
large religious populations, many of whom are critical of the govern-
ment’s prosecution of the war in Iraq. It seems a shame we have to be
robbed permanently of one of the pillars of freedom of expression
because it’s needed temporarily to shore up a wobbling edifice elsewhere.

Atkinson’s concerns that the legislation would trounce rights to freedom of

expression were typical of those opposed to the new law:

I question also the ease with which the existing race hatred legislation is
going to be extended simply by the scoring out of the word ‘racial’ and
the insertion of ‘racial or religious hatred’ as if race and religion are very
similar ideas and we can just bundle them together in one big lump.
When it seems clear to me and to most people that race and religion are
fundamentally different concepts, requiring completely different treat-
ment under the law. To criticise people for their race is manifestly
irrational but to criticise their religion, that is a right. That is a freedom.
The freedom to criticise ideas – any ideas – even if they are sincerely held
 Free to speak, free to hate? 237
beliefs – is one of the fundamental freedoms of society and a law which
attempts to say you can criticise or ridicule ideas as long as they are not
religious ideas is a very peculiar law indeed. It promotes the idea that
there should be a right not to be offended, when in my view, the right to
offend is far more important than any right not to be offended, simply
because one represents openness, the other represents oppression.

Concerns that criticism and ridicule of a religion will fall foul of the new
provisions against incitement to religious hatred were fuelled by some
advocates of the new law, who were indeed expecting it to provide blanket
protection against those who are offensive or rude about Islam.11 However,
such expectations, and also the concerns about the law eroding rights to
freedom of expression, are unfounded once the application of the provisions
against incitement to racial hatred are appreciated, as discussed above. The
new provisions against incitement to religious hatred will be subject to simi-
lar constraints and applied to only the most egregious expressions that
threaten public order.

The expressive value of criminalising hate

When examining the legislative programme of the post-1997 Labour gov-
ernments on legislation against hate crime and hate speech, it is apparent
that a careful and consistent balance has been struck between the rights that
racist hate bring into conflict: the right to freedom of expression for the
perpetrators (and the thoughts behind such expression) and the right of
individuals to freedom from discrimination and victimisation on the basis of
their ‘racial’, ethnic or religious identity. Rights to freedom of expression
have only been curtailed where there is a direct association with criminal
action – as in the case of provisions against racially and religiously aggra-
vated offences – or where there is a close association between words uttered
and a threat to public order – as in the case of incitement to racial and
religious hatred. Examining Labour’s legislative programme through a
sociological lens arguably reveals that by establishing such a careful balance
in the conflict over rights the legislation has reinforced and promoted dom-
inant norms about a fundamental freedom – the right to freedom of expres-
sion – and also norms about personal conduct in civil society as the law
expresses social opprobrium against the perpetrators of racist hate and the
acts they commit. In the case of the latter, expectations about the symbolic
force of legislation have been evident in commentary on the legislation
against hate crime and hate speech. At the beginning of Labour’s legislative
programme, in responding to the Home Office’s consultation exercise on the
provisions against racially aggravated offences, the Association of Chief
Police Officers declared that:

The legislative changes will do much to reinforce the seriousness

with which the vast majority of members of our society view crime and
238 The clash of rights
conduct motivated by racial hatred. It will send out important messages
to perpetrators and victims alike, that racist violence and harassment
will not be tolerated and that positive action will be taken where this is
exhibited.
(Iganski, 1999: 389)

Such a sentiment has been expressed repeatedly in commentary and debates

on Labour’s legislative programme against racist hate.

Notes
1 The prevalence and characteristics of Holocaust denial in Western Europe and
the USA have been well documented (see Seidel, 1986; Lipstadt, 1994; Shermer
and Grobman, 2000). Before the defeat of the Third Reich, denials of atrocities
committed were heard well before the genocide had reached its full conclusion.
Some Nazi sympathisers outside Germany dismissed claims of atrocities as
‘mostly Jew invention’ (Aronsfeld, 1979). In the years immediately following the
Second World War, in the early 1950s, neo-Nazis in Germany claimed that ‘the
fairy tale of the six million’ had been invented by the Allies to divert attention
away from the atrocities they had committed. The view was also propagated that
the atrocities against Jews were carried out secretly by fanatics – in one variant of
this claim, under special orders from Himmler – ‘behind the back of the German
people, German soldiers, even behind the back of the National Socialists and the
hundreds of thousands of SS men fighting on all fronts’ (Aronsfeld, 1979). Hitler,
it was claimed, was unaware of their activities. Doubts were cast on the number
of Jews murdered. It was even claimed that Zionists – who had allegedly infil-
trated the German authorities – were involved in orchestrating the genocide.
Variants of all these claims persist within Holocaust denial material today. In the
late 1960s and in the 1970s a number of publications were distributed that have
since become seminal works of Holocaust denial. Today, a number of them can
be read on the Internet by following links from the websites of extreme right
groups. The material published during this period is characterised by a pseudo-
scholarly guise in their presentation and referencing of sources. But they are also
characterised by distortion and falsification of the sources used. In his publica-
tion Die Auschwitz Luge (1973), Thies Christophersen claimed that Auschwitz
was just a gigantic armanents factory. Richard Harwood, in his publication Did
Six Million Really Die?, claimed that the ‘myth’ ‘that no less than six million
Jews were exterminated’ was designed to ‘arouse sympathy’ for the state of Israel
and to extract financial reparation from Germany. Harwood drew extensively
from an earlier booklet, The Myth of the Six Million, published anonymously in
the United States in 1969. The pseudo-scholarly guise of Holocaust deniers is
epitomised by the Institute for Historical Review – established in the United
States in the late 1970s – and its journal, the Journal of Historical Review, which
have provided the core of the more contemporary Holocaust denial movement
(Stern, 1995). The ‘Institute’ believes that dissemination of its material is pro-
tected under the First Amendment to the United States Constitution, and by
article 19 of the International Covenant on Civil and Political Rights.
2 Early day motion no. 99, ‘David Irving and Holocaust denial’, House of
Commons, 20 June 1989, Session 1988–9.
3 In outlawing ‘incitement to racial hatred’ in the UK the Public Order Act 1986
makes it an offence for a person to publish or distribute ‘written matter which is
threatening, abusive or insulting’ or use ‘in any public place or at any public
 Free to speak, free to hate? 239
meeting words which are threatening, abusive or insulting’ with an intent to
stir up racial hatred or, alternatively, ‘in a case where having regard to all the
circumstances, hatred is likely to be stirred up against any racial group in Great
Britain by the matter or the words in question’ (Public Order Act 1986, Part III,
Section 18).
4 UK House of Commons 1997, Standing Committee C, Holocaust Denial Bill,
col. 22.
5 UK 1975, Cmnd 6234, Racial Discrimination, para. 125.
6 UK Home Office, Scottish Office 1985, Cmnd 9510, Review of Public Order
Law, London: HMSO.
7 UK House of Commons 1997, Standing Committee C, Holocaust Denial Bill,
cols 8–9.
8 David Irving, Introduction to the Leuchter Report (www.fpp.co.uk/Auschwitz/
Leuchter/ReportIntro.html), accessed 5 December 2005. The full section from
which this quote has been drawn reads: ‘Nobody likes to be swindled, still less
where considerable sums of money are involved. (Since 1949 the State of Israel
has received over 90 billion Deutschmarks in voluntary reparations from West
Germany, essentially in atonement for the “gas chambers of Auschwitz”.) And
this myth will not die easily: Too many hundreds of millions of honest, intelligent
people have been duped by the well-financed and brilliantly successful post-war
publicity campaign which followed on from the original ingenious plan of the
British Psychological Warfare Executive (PWE) in 1942 to spread to the propa-
ganda story that the Germans were using “gas chambers” to kill millions of Jews
and other “undesirables”. As late as August 1943 the head of the PWE minuted
the Cabinet secretly that despite the stories they were putting out, there was not
the slightest evidence that such contraptions existed, and he continued with a
warning that stories from Jewish sources in this connection were particularly
suspect.’
9 Mick Hume in the online magazine Spiked 19 July 2005 argued: ‘every govern-
ment minister or official spokesman has emphasised their commitment to defend
“tolerance” – which, in the Newspeak of New Labour, means that they will not
tolerate anything that they deem to be intolerant of Islam or Muslims.’
10 Rowan Atkinson speaks to the Lords, 25 January 2005 (www.secularism.org.
uk/31964.html), accessed 5 December 2005.
11 In evidence to the House of Commons Home Affairs Committee, Session 2004–5,
the Director of Public Prosecutions stated: ‘I think the main issue around that is
managing expectations. . . . One of the dangers around incitement to religious
hatred is that communities – and indeed representatives of the Muslim com-
munities have said this to me – believe somehow this is going to protect them
from people being offensive or rude about Islam. It is not going to do that. You
are perfectly free to be offensive or rude about any religion, there is no law
against it. The danger is that if people think it is going to protect them from that
and it does not they feel very let down by us, by the police, by the Government
and by everybody else, and we get accused of being racist or incompetent, or a
combination of the two, when in fact we are just applying the law. So it is very
important that people understand what that offence will achieve: it will stop the
grossest sort of conduct, but it is not going to stop people being rude about
Islam.’ See also the memorandum submitted by the National Secular Society
(House of Commons Home Affairs Committee, Session 2004–5, House of
Commons Paper No. 165, Memorandum 29).
 A foundation for rights or
theories of practice?
Lydia Morris

We opened this collection with a reference to Turner’s argument that soci-

ology as a discipline has maintained a sceptical distance from the issue of
rights because of the absence of any clear ontological grounding. Though a
number of the chapters in this volume have found his suggestion of human
frailty and social precariousness to be an interesting vehicle for thinking
about rights, and especially universal human rights, it has also proved useful
to side-step the question of theoretical foundations and ask instead what
sociology as a discipline can more readily bring to this topic. In fact, a
tendency in much of the relevant literature has been to press the case of
particularities not readily embraced by existing conceptions of the universal,
while some of the chapters in this volume have seen the functioning of rights
as a possible basis for inequality (both intended and unintended). Other
chapters have referred to a postmodern critique of the cultural and political
ideals of modernity, challenging the certainty of its truth claims, its idea of
progress and its Western ethnocentricity (see Chapters 1, 9 and 10). Never-
theless, the appeal of some form of universalism has been difficult to resist,
as we see in the growing interest and support for the notion of universal
human rights, which seems to offer a possible basis for cohesion in the face
of fragmentation, diversity and loss of collective value frames. Thus Zerilli
(2004) speaks of the ‘homecoming narrative’ of the ‘new universal’, and
Benhabib (1992) has argued that one legacy of modernity worth rehabilitat-
ing is moral and political universalism, based on equal respect for all persons.
She, like Donnelly (2003), argues that the project of modernity itself –
through war, environmental destruction, economic exploitation – accounts
for the very need to embrace such an ideal (cf. Chapter 1).
The appeal of human rights lies in its potential as a set of principles
grounded in common humanity that is both apolitical and universally
applicable. As we have seen, however, such a position has in the past been
open to the political charge that it is neither neutral nor universal but dis-
guised particularism, based on a Western, masculine world view and the
assumptions of liberal individualism (see Chapters 1, 5 and 9). The ideal of
universal human rights has also been subject to the philosophical charge that
it is not clearly grounded in a universal ontology and hence can provide no
 A foundation for rights or theories of practice? 241
convincing account of its origins or justification for its claims. This leaves
sociology as a discipline caught between a search for foundations through
the abstractions of moral philosophy and political theory, or an acceptance
of the tautology of legal positivism, in which rights are simply the entitle-
ments recognised in law (Dworkin, 1978). Neither option sits easily within
the traditional terrain of sociology and this raises the question of whether
the discipline has anything at all to offer in this field.

The search for foundations

We have seen how Turner (1993) has attempted to solve the problem of
foundations through the sociology of the body, and this approach certainly
has its strengths, not least in identifying a common feature of humanity that
is applicable across cultures. A particular appeal of Turner’s position is that
it offers not just an ontological foundation for claims to rights, but also
a plausible account of why they generate support, by evoking human sym-
pathy. There is, however, a question about the precise status of his argument,
and this has been outlined by Waters (1996), who sets out two possibilities.
The argument seems to present either a basis for claims to rights, in which
case some explanation of which claims succeed and which do not would
seem necessary; or a theory of the origins of existing rights, in which case an
empirical account of their emergence would also be required. In fact, Turner
(1997) rejects both positions, stating that his intention is instead to provide a
normative basis for the evaluation of human rights abuse.
This position does not in itself escape uncertainty, and at the very least
requires some definition of frailty, for as Turner concedes, disabilities of
various kinds have in the past been the basis for exclusion from the moral/
political community (see Chapter 11). Where the boundary of inclusion/
exclusion will be drawn is by no means self-evident, and as Wilson (1997: 6)
has argued, we cannot even suppose that all cultures have a conception of
the ‘human’, or base their own legal systems on a notion of the individual,
autonomous subject. In fact, any attempt to ground the universal in a foun-
dational ontology will become particular once the substance of that onto-
logy requires specification. Turner’s solution also seems to offer an oddly
passive foundation for claims to rights, and in this it strikes a contrast
with Donnelly’s (2003) argument that human rights find their philosophical
justification in the moral agency that is distinctive to human existence. While
Turner might wish to argue that his theory embraces this point, for without
the body there can be no agency, Donnelly’s emphasis on active responsible
personhood and the realisation of human potential offers a view of human
rights as constitutive rather than regulative, and a fuller and more plausible
vision of what it is that human rights are intended to protect or promote.
Social and political theory has meanwhile begun to shy away from the
question of definition and foundations, and Habermas’s theory of com-
municative ethics has inspired a more discursive approach to universal
242 A foundation for rights or theories of practice?
rights, as in Benhabib’s (1992) interactive universalism and Lister’s (2003)
notion of differentiated universalism. The emphasis here is on process and
procedure, giving everyone an equal voice and embracing the obligation
to listen and to seek mutual understanding. This also chimes well with
Donnelly’s emphasis on moral agency, though the impediments to achieving
such an outcome have also received attention (Chambers, 1996; Norval,
2004). A more radical position is taken by Laclau (1996), through his
conception of the universal as an empty signifier, a constantly contested
space. Since the demands of the particular can only be made in terms of
principles that are universally shared, this means the universal must be con-
stantly negotiated and renegotiated. Once given substance, it will always be
particular and its content historically contingent, an open series of demands,
in the face of which ‘philosophy comes to an end and the realm of politics
begins’ (ibid.: 123).
We might also argue that where philosophy ends, sociology begins, and
some of the chapters in this volume have demonstrated the way in which the
content of the universal, and the categories to which it applies, have been
negotiated over time (see Chapters 8 and 11). That would certainly be the
argument of the social constructionist position advocated by Waters (1996),
which sees the content of rights as historical configurations of interest with
their related value commitments. Thus, ‘human rights is an institution that is
specific to cultural and historical context just like any other . . . its very
universality is itself a human construction’ (ibid.: 593). Is it the case, then,
that sociology must necessarily, as Turner claims, absent itself from moral
debate? Waters’s interest in part lies in the relationship between claims and
norms; or between rights ‘talk’ as a means of unlocking social closure, and
the eventual institutionalisation of some claims. This latter stage is in part
explained by the advantages offered in terms of consolidating political sup-
port (cf. Giddens, 1985; Mann, 1987), but is often arrived at through the
construction of a moral case and the gradual accretion of public recognition
and support (see Chapters 5, 6 and 8).
It is easy to see why Wilson (1997: 14) has argued that we should set
philosophical deliberation to the side, ‘and proceed with our contingent and
historical investigations’. The moral issues at play do not stand apart from
the fray but, as Waters argues, are deeply implicated in the construction
and endorsement of human rights. Claims-making may involve a claim for
recognition, resources and even power, but will also contain a moral claim
that must convince in terms of the ‘universalisation of human interest’,
albeit in the context of existing social institutions and the machinery of
power. The question for sociology is not so much how we evaluate the moral
worth of the claim, but what are the means whereby a claim moves from
the initial engagement with a rights issue, through the process of garnering
support, to formal recognition and finally institutionalisation. It may be
the claim to belong to the relevant moral community, as Turner might
put it, that is at issue, as much as the substance of the right per se, and
 A foundation for rights or theories of practice? 243
historical accounts show surprising shifts in the boundaries of belonging (see
Chapters 8 and 11).

The practice of rights

In keeping with this view, Donnelly (2003) sees human rights as emergent
and processual, rather than firmly grounded in philosophical foundations.
Such foundations can be firm, he argues, only because we have agreed to
treat them as such, citing the fact that societies have denied ‘the moral cen-
trality, even the existence, of our common humanity’ (ibid.: 19). Thus,
‘foundational arguments reflect contingent and contentious agreements to
cut off certain kinds of questions’ (ibid.: 20). He goes on to argue that
foundational positions provide us with (only) the reassurance of internal
consistency, rather than external validation. The picture is therefore one of
emergent consensus through argument and persuasion, rather than of clear
incontrovertible foundations, a conclusion that echoes Durkheim’s view of
social facts as things, with rights not inherent in persons but bestowed on
them by society. This therefore places considerable significance on the study
of the social arrangements surrounding rights, the way in which they func-
tion in relation to social structures and institutions, the way that rights are
accrued in particular areas by particular social groups and the contexts in
which they are implemented and given meaning.
This point was touched on in the introduction, with reference to Lukes’s
(1991) observation that, although there is some difficulty in establishing a
firm foundation for human rights, there is clear evidence of broad agreement
in the way the idea is applied in practice. Donnelly (2003) too makes
the point that there is remarkable international normative consensus, and
expands on the nature of human rights as rights ‘of the highest order’. How-
ever, he also notes that the objects of many rights can be claimed as ‘ordin-
ary’ legal rights in most national systems, and that human rights claims
often seek to establish lower-level rights. Indeed, the conventional rights
of citizenship, as, for example, outlined by Marshall, are an instance of
the delivery of civil, political and social rights at national level, though
Marshall’s work and the rights themselves predate the two principle treaties
associated with the Universal Declaration. The holders of rights will
typically use the lowest level of entitlement available, unless denied, in
which case there may be an appeal to a higher order of rights. As we have
seen, Dworkin (1978) makes a related distinction between ‘background’
rights and ‘institutional’ rights, and between principles and policy.
This book, however, has been about the practice of rights rather more
than the theory of foundations, and we should not overlook Lukes’s point
that not all human rights are fully recognised in practice and that few are
absolute. Our title refers to ‘rights’ rather than ‘human rights’, in recogni-
tion of these issues, and one point of interest raised in Chapter 4 has been the
way in which access to rights can constitute a form of stratification, with
244 A foundation for rights or theories of practice?
even established human rights containing their own hierarchy of absolute,
limited and qualified rights. Does this mean that – despite claims to the
contrary – the present work remains trapped in a position of legal positiv-
ism, whereby rights are defined purely and simply by the letter of the law?
There are a number of ways in which the contents of this volume depart
from such a view, so Chapter 6, for example, shows how the recognition of
certain norms in transnational law (e.g. European Union anti-discrimination
law) does not easily translate into coherent policy and practice. Other
chapters have focused on the struggle that some groups have waged in order
to establish their claims or elevate them to the level of recognised ‘human
rights’ (see Chapters 5 and 8).
The possibility of movement is a central issue for rights theorists (e.g.
Dworkin, 1978; Donnelly, 2003) and inevitably renders a static positivistic
view of rights inadequate. Donnelly sees the practice of rights as involving
three types of social interaction: the assertion of the right, active respect by
the duty holder and objective enjoyment of the right. If we think about the
establishment of a right, then this series could be adapted and augmented to
yield the following sequence: the assertion of a claim, the accumulation of
moral credibility and support, recognition of the claim and finally its insti-
tutionalisation. In this sense, social action is at the root of human rights; as
Donnelly (2003: 16) puts it, ‘a moral posit rather than a fact of nature’,
which carries with it an accompanying social project ‘to make real the world
that they envision’ (ibid.: 21; cf. Chapters 6 and 8). Dworkin (1978) is also
interested in the question of movement and recognises that we think in terms
of the law changing and evolving, such that some of the standards to which
judges and lawyers appeal cannot be captured in terms of basic rules or a
fundamental test.
We have already noted that a key issue for Dworkin is the application
of law in the light of ‘background principles’, and the quest for absolute
foundations may therefore be at the cost of exploring process and negoti-
ation, and the huge significance that attaches to interpretation of the law.
There are hints of this position in Derrida’s (1992) distinction between just-
ice and the law. Both arguments open up channels for the representation of
particularist meaning according to specific circumstances or with reference
to specific social groups. For Wilson (1997), the opposition of universalism
and relativism is too polarising: while universalism makes comparison pos-
sible, relativism grants precedence to immediate context and encourages
sensitivity to diversity, and both are of value. As an anthropologist, he places
particular emphasis on the way that rights are used: ‘how rights-based nor-
mative discourses are produced, translated and materialised in a variety of
contexts’ (ibid.: 13). The substantive interpretation that people give to the
language of rights then becomes central, and this can also play an important
part in a sociological treatment of rights, stressing dynamism, practice and
meaning. But we have also seen how contextual issues apply in another
sense, and that is in relation to the broader social structures that provide the
 A foundation for rights or theories of practice? 245
framework for social life, be they economic, political, institutional, cultural,
familial, etc.

Classical themes
Sociology has something to offer on each of these analytical levels, as we
discover from the material reviewed in the introduction, and from the struc-
turing of the chapters that followed. In what remains of this conclusion, I
first identify the key themes and issues that emerged from the introduction
and the way in which they have been engaged or advanced by the various
chapters, before briefly reviewing the four different parts, or approaches,
into which the contributions to the volume have been grouped. As we saw, a
consideration of classical works yielded several contrasting but not necessar-
ily mutually exclusive perspectives on the issue of rights, from which a num-
ber of substantive themes emerge. My focus now is less on these perspectives
per se, but more on their scope for application to the study of rights,
especially as taken up in the various contributions to this volume.
We have seen that Durkheim was principally interested in the bases of
social cohesion, especially under conditions of fragmentation and anomie.
Although an adherent of moral individualism, he also stressed the role of
beliefs in providing a foundation both for identity and for a communal bond
between members of society. He offered a view of rights as social facts, in
the gift of society but representing a recognition and sanctification of human
potential. This potential he thought best realised through the freedoms and
protections of liberalism, but in the context of a communion with others.
Chapter 1 takes up these issues to argue that no fully human life is possible
without some connection with the life of society and the meaning that this
provides, and here we have a view of the individual situated within a system
of beliefs and values that gives meaning to their social relations and inter-
actions. For Benton, a reasonable expectation of a system of rights is that it
should acknowledge and enable this interconnectedness. Similar ideas are
explored in Chapter 7, through a view of rights as rooted in society, its
values and institutions, while ideas about the meaning of commonality
and the way in which it might structure our thinking about rights are also
present in Chapters 2 and 3, which respectively consider pensions rights and
the right to care as being variously embedded in the pattern of both familial
and societal responsibilities across the generations.
The introduction shows how Weber, like Durkheim, was interested in
the disenchantment of modern life, which he argued to result from an
unremitting drive towards rationality. This process was, in part, built on the
efficient administration of state and society through the elaboration of law
and bureaucracy, yielding a set of rationally objective rules and procedures
for governing and regulating individuals. For Weber, this is the context in
which a regime of rights must operate, and he gives us a key to understand-
ing how such a system may also be bound up with the struggle for power
246 A foundation for rights or theories of practice?
and resources, shaped by techniques of social closure. These struggles are
manifest in what Lockwood (1996) terms a system of civic stratification,
illustrated in Chapter 4 through a discussion of welfare, immigration and
asylum, while Chapter 5 shows how women’s claim to full human rights
was built explicitly on a claim to equal status, which was also in part a claim
for resources. This approach is also apparent, though less central, in the
account of the struggle for gay rights in Chapter 8 and the discussion of
indigenous rights in Chapter 9, both of which document struggles for status
and recognition. Chapter 6 discusses the importance of advocacy coalitions
in the pursuit of rights, but shows how this may also involve a collision or
compromise over strategy and competition over resources.
In Marx’s work we have a view of rights as functioning in service to the
economic system and the ruling powers of capitalism, and a critique of any
conception of rights based on self-sufficient and egoistic individuals, whose
social existence is premised on personal autonomy and the right to property,
without regard for other social bonds. However, Chapter 1 offers an
account of Marx’s position that differs from some of his critics, noting in
particular that civil and political rights could be the basis for actions that
challenge the status quo, in the name of human emancipation. The argument
opens up further debate about the possible future of rights once such liber-
ation has been achieved, and this Benton believes must be rooted in social
belonging, embodiment and environmental integrity. Such a ‘systems’ based
approach to rights is also present in different ways in Chapter 2, which
considers pension rights in the context not only of intergenerational justice,
but also the tension between public and private schemes, and the different
questions of responsibility and liability each raises. Chapter 3 adopts a
related approach in considering the culturally variable patterns of exchange,
reciprocity and obligation that underpin different systems of care.
I include in this section on classical themes the work of T. H. Marshall
(1950), as the first sociologist to place the issue of rights at the centre of
analysis. His essay on citizenship and social class is informed by some of the
ideas discussed above, and indeed places the tension between citizenship and
capitalism at its core. The work is also a recognition of the significance of
status in modern capitalist society, and considers rights as a possible source
of social cohesion and integration, while also being a potential source of
inequality. A number of chapters in this collection take Marshall’s work as a
starting point for their own discussion. Chapter 4 sees in Marshall a devel-
opment of the Weberian tradition through a status based approach to rights,
which considers both formal standing and informal prestige factors in the
struggle for recognition and resources. Chapter 8 also considers the way in
which a Marshallian model of citizenship has underpinned some of the
claims of the gay and lesbian movement, while Chapter 11 uses Marshall’s
analysis to consider the linkages between mental disorder and human rights,
making the point that his argument is more complex than critics have
recognised, especially his recognition of rights as a terrain of struggle.
 A foundation for rights or theories of practice? 247
Particularism versus universalism
Struggle and movement have been at the centre of much critical comment on
Marshall, and this is the area from which the more recent work on the
dynamic nature of rights has emerged. The most trenchant criticisms hinge
on the universalist/particularist opposition and stem from an argument that
the rights guaranteed by citizenship, and even more so by universal human
rights, elevate a particularist model of social life to the level of the universal.
This argument has been adopted in relation to the exclusion of a variety of
specific groups from entitlement to the full range of rights, and each in its
turn has fuelled a related social movement for establishing a claim to
the rights at issue. Many of these critiques are expressed as critiques of
Marshallian citizenship, and while some may envisage universal human
rights as a solution, often the same criticisms will also have a salience at that
level.
For example, the feminist critique of Marshall (e.g. Phillips, 1992; Lister,
1997) notes his neglect of the gendered assumptions structuring citizenship.
As a status of the public sphere, citizenship is argued to ignore the public/
private divisions that inform the concept of rights, and that systematically
disadvantage women. Feminism has therefore entailed a claim to sameness
(that is, to be treated as equal to men) and a claim to be different (that is, to
have their particularity recognised and accommodated). These arguments,
and some of their attendant difficulties, are addressed in Chapter 5, which
documents the struggle of the women’s movement for full recognition on the
international stage, demonstrating the way in which dilemmas generated at
the level of citizenship may be writ large at the level of human rights. The
feminist movement itself, however, has generated its own particularities, as
Elson makes clear, and has led to the charge that the concerns of black and
‘Third World’ women have been submerged in the agendas of ‘First World’
feminism. Arguments such as these have fuelled the deconstructive strand
of feminism (Nash, 2002), which seeks to challenge all classification and
categorisation that tends to essentialism.
We noted in the introduction that the feminist critique of ‘false universals’
is closely associated with an interest in the embodiment of rights, which
emphasises the lived experience of difference, and hence applies not only to
gender difference but to sexuality, race, ethnicity, disability and age. Each of
these sources of difference can lead to demands that are perhaps best seen in
terms of claims for particularist inclusions, or Lister’s differentiated univer-
salism, which seeks an incorporation of these varied perspectives in the
granting and delivery of rights. Chapter 8 provides an example by means of
a narrative of the gay rights movement, revealing the sameness/difference
dilemma in another guise. Part of the movement may seek the right to be the
same as the heterosexual population: to marry, found families and claim the
recognition and entitlements that accompany this. Others seek the right to
be different: to establish a way of living that does not approximate to the
248 A foundation for rights or theories of practice?
recognised patterns of conventional intimate life, a claim that is closely
associated with ‘queer theory’. In Chapter 6 we see how the sameness/
difference dilemma arises again in the context of anti-racism, and in
Chapter 12 we find a discussion of the clash between a universal right to
free expression and particular needs for protection.
Some particularist positions have criticised the neglect of cultural rights in
Marshallian notions of citizenship, and also at the level of universal human
rights more generally. Their arguments are rooted in a communitarian cri-
tique of liberalism, apparent in Chapter 1, and also informing the arguments
of Chapter 7. The former, as we have seen, challenges the construction of
rights around a model of the isolated and autonomous individual, conceived
as unencumbered and unsupported by intimate social relations. The latter
attempts an interpretation of moral dilemmas in their social and cultural
context, to illustrate the socially embedded nature of rights and consider
the alternative expressions of morality within which they may operate.
Chapter 9 considers the case of indigenous rights, to illustrate the ethno-
centric assumptions of universalist frameworks of rights that deny the legit-
imacy of indigenous systems and offer compensation in the context of a
citizenship and sovereignty they do not recognise.
An associated criticism of Marshallian citizenship challenges the taken-
for-granted status of the nation state in his conception of rights; his failure to
deal with national boundary drawing and the position of non-citizens.
Chapter 4 considers this issue, weighing the arguments that see citizenship
as a form of social closure against the view that national citizenship has been
superseded by universal personhood. The chapter seeks a path between the
two positions by using the notion of civic stratification to illustrate the way
in which rights can be a means of constructing inequalities. The debate is,
however, indicative of a more general tendency to look to the development
of transnational institutions for the assertion and protection of rights, as
discussed in Chapters 5 and 6. In particular, there has been a tendency to
expand Marshallian conceptions of national citizenship to embrace the uni-
versal (e.g. Parry, 1991; Soysal, 1994; Meyer et al., 1997), though this pos-
ition is also open to criticism, by virtue of the limited purchase of many
human rights guarantees, and the danger of continuing the evolutionary
mind-set for which Marshall has been (somewhat unfairly) criticised.
There is one other treatment of particularism considered in this volume
and noted in the introduction, which has classically drawn on Foucauldian
discourse analysis of the construction and management of marginal groups
such as prisoners, the mad and homosexuals. Foucault’s work provides a
conception of disciplinary discourse and regimes of power that might appear
as the converse of rights, but that can often function through their adminis-
tration and implementation (Woodiwiss, 2005). He also emphasises the
force of subjugated knowledges, awakened by the application of disciplinary
discourses to challenge the power and authority they embody. This work is
drawn on by Chapter 11, which discusses the tradition of denying rights to
 A foundation for rights or theories of practice? 249
those held in detention for mental disorder, before documenting the process
that led to a change in this tradition, in part through changed conceptions of
‘madness’. Chapter 10 similarly considers the denial of prisoners’ rights,
but moves on to engage with a ‘justice of alterity’, which asserts the rights
of those for whom there is no empathy, and to document the slow but
significant recognition of prisoners’ claims to human rights.
In many cases, the particularist positions reported in this volume seem to
stake a claim for recognition in terms of equal status and worth, but not
necessarily in terms of the conventions of established rights. We are thus
faced with the question of how to respond to scepticism about claims to
universalism, and whether proliferation of diversity and increasing fragmen-
tation is the inevitable outcome. As we noted above, the implementation of
rights and adjudication of claims will almost always involve an element of
interpretation, and a central issue here is the use of ‘rights talk’: the way in
which a particularist claim is expressed, perhaps in a manner translatable
into universalist guarantees, albeit in revised form. These claims often pro-
vide the momentum that fuels changes in the law and in conceptions of
rights, as referred to in earlier discussion. We have already noted another
element of interpretation that could be brought into play in the assertion and
understanding of rights: that of the broader context of structures, values and
relationships in which people live their lives. A truly enabling system of
rights would build these considerations into its design and implementation,
and sociological analysis can help to provide the background understanding
that might make this possible.

Sociological approaches to the study of rights

In identifying the sociological contribution to an understanding of rights, we
need to distinguish between the substantive issues addressed and the avail-
able analytical approaches that could in theory apply to any or all. The
previous sections considered the themes and issues emerging from existing
literature, but we can go a little further in attempting to identify and clarify
distinctive approaches to the sociological study of rights. I have therefore
separated a review of the substantive issues (as detailed above) from a brief
review of approaches, distinguishing the latter by the four rough headings
into which the contributions to this volume have been sorted. These are:
political economy; status, norms and institutions; meaning and interpret-
ation; and finally the clash of rights. It should be obvious from the discussion
of the contributions so far that very few are confined to one approach only
and the division into categories of this kind is in some sense artificial. How-
ever, for the purpose of clarifying quite what it is that sociology as a discip-
line brings to the study and understanding of rights, I hope it proves a
worthwhile exercise.
The first grouping of chapters, under the political economy heading, have
in common a holistic approach to social relations and institutions, which
250 A foundation for rights or theories of practice?
places them in the context of wider economic and political arrangements.
Rights are then viewed as one aspect of these arrangements, a feature of the
model of social relations that underpins a given political and economic
regime. So, for example, rights will be shaped by conceptions of the
appropriate means for the distribution of resources in society, which is in
turn a feature of the principles shaping the dominant economic system. The
chapters in this grouping thus draw upon a Marxist analysis of the social
relations of capitalism, and on Durkheimian conceptions of social cohesion.
Both analyses provide the context for the critique in Chapter 1 of the liberal
tradition of rights, and the argument for an approach to rights that replaces
liberal individualism with an acknowledgement of the multiple harms that
threaten individuals and their environments, of the unequal command of
resources affecting access to rights and of the personal and community
bonds that make life meaningful. Chapter 2 similarly addresses the question
of community bonds through the nature and degree of cross-generational
responsibility for the elderly. The range of possible options is placed in the
context of political decisions about taxation, investment, profit and the loca-
tion of responsibility, be it individual, familial or societal. Chapter 3 extends
these considerations to the question of the right to care, which is placed in
comparative context as part of a web of culturally variable relationships,
such that the right to and need for care is revealed as a socio-historical
construction. We then see how the varied systems of provisioning that
emerge generate their own correlative rights, which are not necessarily
formally enshrined.
The second grouping of chapters, under the heading of status, norms and
institutions, is concerned with the establishment and functioning of rights in
their institutional setting. It shows, for example, how status can operate in
two ways with respect to the establishment and implementation of norma-
tive standards – through the formal statuses that determine entitlement to
rights, and through the informal prestige factors that shape access to rights,
resources and recognition. The perspective is clearly influenced by Weberian
conceptions of the status order, and the Marshallian model of citizenship,
both of which figure in Lockwood’s (1996) notion of civic stratification.
Chapter 4 applies these ideas both to an analysis of the underclass debate,
especially in relation to the British welfare system, in which informal deficit
is particularly apparent, and to a consideration of immigration and asylum,
in which formal status differences are a major factor enabling systems of
‘managed migration’. Chapter 5 argues that the assertion ‘women’s rights
are human rights’ is a claim to equal status, and shows how even within the
UN this has entailed a struggle for recognition and resources. The treatment
of the Convention for the Elimination of Discrimination against Women as a
secondary convention is one mark of the civic deficit confronting women,
which is in turn tied to their association with the private sphere and the
lesser status this attracts. Chapter 6, on EU anti-discrimination law,
discusses the factors that helped to establish EU anti-discrimination law,
 A foundation for rights or theories of practice? 251
particularly the role of advocacy coalitions and the achievement of ‘fit’ with
other EU priorities. Though the norms represented by this law can still be
mediated by different national interests, and agreement on strategy and
resources will require a degree of compromise, the very assertion of this
supranational principle is itself deemed significant.
The third grouping of chapters, under the heading of meaning, interpret-
ation and rights, stresses the role of meaning in relation to both the practice
of rights and claims-making, and is the approach best placed to provide an
understanding of a variety of particularities in relation to rights. Meaning
may function in the sense of the values and assumptions that inform and
structure social relations, the discourses lying behind the classification and
treatment of specific social groups, or in the sense of distinctive cultural
traditions, beliefs and institutions. This part contains examples of each.
Chapter 7 explores the normative rules and sanctions at play in three
different case studies with different rights at issue – the sexual freedom of
gay men in Britain, the Indian tradition of sati and the choices of Thai sex
workers – to reveal the embedded nature of ‘rights’. Through these cases, the
assumptions of the liberal rights tradition are tested against the extent to
which they are valued in different contexts and relevant to the individual
agents concerned. Chapter 8 looks at the constructions that have been
placed on homosexuals in the past, and the shifts in meaning, perceptions
and identities that lie behind their claims to rights and recognition in con-
temporary society. Chapter 9 looks at meaning in the context of indigenous
belief systems and their contestation of the world view of the colonising
powers. Denial of the validity of these ‘meanings’ has meant that indigenous
peoples are driven to claim their rights through an engagement with a system
of rules that are culturally alien and that in fact deny established rights in the
context of their own beliefs.
Finally, the last grouping provides less an approach than a common prob-
lem, that of the clash of rights, and for two of the chapters this is explored in
the context of what has been termed ‘alterity’: the construction of particular
groups for whom the denial of rights has been deemed acceptable. Such a
denial raises questions of on what terms and under which authority it could
be permissible, while the third case, on combating hate crimes, considers
how to weigh the freedoms forfeited against the harms inflicted. Chapter 10
takes the case of prisoners’ rights, or, rather, their restrictions. Among other
points explored by the chapter is the limitation of an individualised
approach to rights, which fails to address the social roots of criminality and
thus disguises the degree of collective responsibility a society might owe its
criminal population. Similar issues arise in Chapter 11, which discusses the
treatment of mental disorder. As well as charting the historical construction
of ‘madness’, the chapter shows how rights issues are implicated both in the
withholding of civil and political rights in early treatments and, more
recently, through instances of inadequate provision, which can prompt a
recurrence or worsening of the original condition. Chapter 12 discusses both
252 A foundation for rights or theories of practice?
racially aggravated crime and a variety of forms of hate speech, highlighting
the potential symbolic role of the law in (ideally) protecting freedoms and
asserting appropriate values. The associated dilemmas extend beyond the
universalist/particularist opposition weighing free speech against the need for
protection, and raise difficult questions about equal treatment before the
law, and the possibility of identifying ‘extra harms’ imposed by the senti-
ment underpinning a crime.
Though the question of a clear theoretical foundation for rights may
remain unanswered, each of these approaches or orientations helps to
advance contemporary understanding and analysis of rights. The four parts
of the book respectively address context and structure, operation and
implementation, meaning and experience and, finally, conflict and alterity.
Together the contributions to this volume draw attention to different aspects
of the social construction of rights, from the political and economic system,
through the institutionalisation of prestige and resources, to the dynamic
claims for recognition, and the question of when rights can be legitimately
denied. It is the multifaceted nature of rights: as tools of governance,
as expressions of moral responsibility, as elements in a status ranking, as
components of belief systems, as elements of an economic system and as
claims in a political engagement that makes the terrain so intellectually fas-
cinating and challenging, especially from the standpoint of sociology. I hope
something of this has been conveyed by the work contained in our
collection.
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Index

active rights 22 Barry, Brian 47

Africa: indigenous peoples 170 Bauman, Zygmunt 140, 147, 196
Albany Trust (AT) 155, 158 Bechhofer, F. 81
Alfred, Taiaiake 180–1 Beck, U. 28, 29
alterity: ethics 196, 197; feminism 198; Bellamy, Richard 145
justice 187, 188, 199; see also other benevolence 23, 35, 36
Amnesty International 113, 159 Benhabib, S. 240, 242
anomie 3, 176 benign dependencies 17
anti-racism: advocacy coalitions Bentham, Jeremy 182, 192–3
111–12, 116, 119–20; anti-racist Benton, Ted 6, 7, 9, 17–18, 21–36, 245,
movements 116, 117, 120; 246
assimilationist/multiculturalist 116, Berlusconi, Silvio 43, 50
123; conscience constituencies Bill of Rights (1688) 192
112–13; declarations of principle 112; Bismarck, Otto von 39, 40
education 116–17; European Union Blackburn, Robin 18, 37–54
(EU) 74–7, 111–12, 115–28, 250–1; Board of Deputies of British Jews 231,
global principle 115–17; policy 235
change/formation 112–13, 116, 120; Bourdieu, Pierre 139
transnational norms 111, 112, 117, Brubaker, W.R. 88
118 Bruce, Tammy 227
Aoyama, Kaoru 135–6, 148 Bunch, Charlotte 99–101, 102,
Arendt, Hannah 207 106
asylum seekers 91, 92, 108, 204 bureaucracy: capitalism 4–5; rationality
Atkinson, Rowan 236–7 5, 176, 245; social justice 5; social
Australia: Aborigines 169, 173, 178–9, welfare 5
181; Crown land 178; death rates Busfield, Joan 209–23
173; “half-caste” children 171–2; Bush, George W. (43rd President) 42,
Human Rights and Equal 161
Opportunities Commission 172; land
rights 178–9; material progress 181 Canada: indigenous peoples 172–4, 179,
Austria: right-wing movements 118 180; land claims 179
autonomy: abuse/invasion 23; capitalism: bureaucracy 4–5;
achievement 23; case studies 129, decommodification of life 40–1;
133–51; employment relations 26–7; employment relations 26–7, 33, 34;
free will 199; human rights 106; future income 37; inequality 26, 33–4,
liberalism 138; life-plans 24, 28; 47; liberal democracy 32; market
morality 22 capitalism 8, 9; rights 212, 213;
taxation 53, 54
Bal, Peter 197 care: children see child care; ethics 197,
Barbalet, J.M. 83 199
 Index 281
care provision: citizenship 64; Cladis, Mark S. 3, 140–1, 143–4, 147
commercial 65; concepts/landscape clash of rights 187–239
56–8; contrasting systems of rights class: class, status and power 78;
64–7; economic sociology 18–19, underclass 73, 81–5; see also social
55–71; elder care 67–70; entitlements class
61, 62; expectations 69; financial Clinton, William Jefferson
support 68–9; gender differences (42nd President) 42
56–7, 63, 64, 68, 69, 108–9; health Cobo, Jose Martinez 169–70
66–7; human rights 58–61; Cohen, Stanley 199–200
kinship/family 62, 64, 66, 68, 69; Cold War: socialist regimes 1
mixed economy 62, 66; modalities collective rights 107
61–3; The Netherlands 63, 65–6; Colombia: death squads 160
public 64, 69; residential care 69; Condorcet, Marquis de 39
scandals 64; Scandinavia 63, 67, constructionism: contested
69–70; traditional societies 67–8; constructions 166; human rights 154;
United States 63; universal rights 59; social constructionism 4, 10, 74, 177,
voluntary 65–6, 70; welfare states 57, 178
61, 62, 69 contract: status 79, 81, 85–7
Carlen, P. 205 Convention on the Elimination of All
Carrabine, Eamonn 191–208 Forms of Discrimination against
case studies: autonomy 129, 133–51; Women (CEDAW) (1979) 74, 99,
strategy 134–5 100, 104–5, 250
Central and Eastern European countries: Convention on the Rights of Indigenous
socialist regimes 1, 34 People (ILO) 107
Checkel, J. 114 conversationalised scripts 10
child care: child-friendly policies 49, 50; criminology: radicalism 199–200
education 57–8; The Netherlands 58; Critchley, Simon 197
parental duty 64; Scandinavia 57–8; culture: life-plans 24, 25, 27
systems of provision 63; see also care
provision Daly, M. 84
children: Australia 171–2; prisoners de Beauvoir, Simone 198
204, 205, 206; sexual rights 163 Declaration on the Rights of Indigenous
Churchill, Ward 180 Peoples (draft) 169, 184
citizenship: aboriginal peoples 9; care dependency: conditionality 82;
provision 64; duties 8; employment deterrence 84; gender differences
89, 90; evolutionary perspective 11, 26–7
12, 78–9, 93, 214; exclusion 9; gender Derrida, Jacques 14, 196, 197, 198, 199,
differences 12; indigenous peoples 244
184; intimate citizenship 162–4; Devlin of West Wick (Baron) 142–3,
Marshall (T.H.) 5, 7–11, 73, 78–82, 144
85, 86, 88, 93, 138, 162, 188, discrimination: cultural groups 183;
212–14, 222, 246–8; particularities 9; freedom of expression compared
postmodernism 11; queer theory 188–9, 224–39
164–5, 248; social class 5, 7–11, distributive inequality 25
78–80; social cohesion 85, 245, 250; Donnelly, J. 240, 241, 242, 243, 244
social welfare 8; Turner (Bryan S.) duality: ontology 139; structuration
9–10, 177 theory 129, 134, 139
civic exclusion/expansion 81, 82, 83, 84, Durkheim, Emile: anomie 3, 176;
93, 214 collective bonds 176; evolutionary
civic gain/deficit 81, 82, 84–5, 89, 90–1, perspective 174; fundamental rights 4;
214 liberalism 3; life of society 24; moral
civic stratification: inequality 80–1; individualism 3–4, 141; political
migrant rights 87–8; pensions 18 philosophy 140–1; punishment 195,
civil society: egoism 6, 24 237; religion 3, 8; social cohesion
282 Index
245, 250; social facts 1, 2–3, 243; 111–12, 115–28, 250–1; asylum
social meanings 24 seekers 91; civil partnerships 157;
Dworkin, Ronald 15, 135–8, 141–7, Employment Framework Directive
149, 243, 244 118; free movement of workers 122;
human fertility 49; infringement
Ebing, Richard von Krafft 157 procedure 118; inter-organisational
education: anti-racism 116–17; child relations 124–6; Racial Equality
care 57–8; positive rights 32, 33; Directive (2000) 118; racism 225;
stratification 213 residence 89; right-wing movements
egoism: civil society 6, 24; Marx (Karl) 115, 117, 118, 123; social exclusion
6, 194, 246 causes 119; Treaty of Amsterdam
elder care 67–70 (1997) Art.13 111, 112, 117–18
Ellis, Henry Havelock 158 European Year against Racism (1997)
Elson, Diane 74, 94–110, 129 122, 126
emancipation: Marx (Karl) 6, 7, 26, 31 Evans, David 162–3
employment: asylum seekers 91; evolutionary perspective 11, 12, 78–9,
citizenship 89, 90; dual earner model 93, 174
55, 69; gender differences 63, 69;
migrant sex workers 148–50; families: care provision 62, 64, 66, 68,
migrants 90; occupational life- 69; global movement 161–2; human
histories 17, 29; relations, capitalism rights 90; nuclear family 82; single
26–7, 33, 34 parents 82, 84, 85; unification rights
Employment Policy Convention (1966) 90; see also child care
87 feminism: activism 97; alterity 198;
Engels, Friedrich 29, 175 anti-foundationalism 101; care
Enlightenment: liberalism 192; project provision 57–7; false universals 187,
193, 197; Scottish Enlightenment 25 247; global movement 97–9; human
environment: GMO crops 31; living rights 94–110; jurisprudence 187,
conditions 29; pollution 28 198–9; liberalism 198; moral
equality: deconstructive 104, 105; reasoning 199; other 198; post-
health 25–6; human rights 74; structuralist 96, 103, 104, 105;
individual worth 17, 21, 22; justice re-visioning 100, 101; universalism
227; law 27; status 79, 101–3; 96, 103, 187, 247; violence 97, 99,
transformative 105; United States 100
108; see also inequality Flynn, D. 92–3
Esping-Andersen, Gosta 40, 214 Foucault, Michel: discursive power
ethics: alterity 196, 197; postmodernism 14–15; irrationality 210;
197; social theory 140 medicalisation 210; mental disorder
European Commission: anti-racism 119, 61, 188, 209–11, 215; psychosis 210;
121–4; Social Affairs Directorate- punishment 200; relativity of
General 122, 125 knowledge 196; “ship of fools” 60;
European Convention on Human Rights surveillance and control 15, 187, 195
(ECHR) (1950) 10, 58, 89, 90, 117, foundationalism: anti-foundationalism
187, 201, 206, 219 101; Turner (Bryan S.) 178, 241
European Convention on Social and frailty: rights 18, 19, 38, 60, 178; theory
Medical Assistance 89 19, 58, 95, 104, 178
European Economic Area (EEA) 89, 90 France: Ancien Régime 39; Declaration
European Monitoring Centre against of the Rights of Man and the Citizen
Racism (EUMC) 120–1 (1789) 22, 192, 212, 213; mental
European Network against racism disorder 215, 217, 218; Napoleonic
(ENAR) 120 Code 152; pensions 39, 42; sexual
European Parliament 112, 119, 121, rights 152; Terror 192
125, 231 Fraser, Arvonne 98, 99
European Union (EU): anti-racism 74–7, Fraser, Nancy 12, 105, 199
 Index 283
fraud: welfare spending 86 message 229; “thought crime” 227,
freedom of expression: freedom from 229–30; United States 224, 227
discrimination compared 188–9, hate speech: Holocaust denial 189, 226,
224–39; Marx (Karl) 6, 26; protection 230–5; incitement of hatred 230–7;
233–4; religion 236–7; United States legal sanctions 224; public order 233,
227 234, 235, 236, 237; United States
freedoms: free movement of workers 227
122; freedom of choice 135; health: care provision 66–7;
protection 22 environmental health 29; equality
Freeman, G.P. 87 25–6
Freeman, M. 179 Heidensohn, Francis 198–9
Freud, Sigmund 36 Heise, Lori 105
Friedman, E. 102 Hirschfield, Magnus 158
HIV/AIDS 130, 159
Gapes, Mike 231, 233 Hobbes, Thomas 182, 192
Gay Liberation Front (GLF) 130, 157, Hobhouse, Leonard Trelawney 31
158 holism: rights 133–4
gender differences: asylum seekers 108; Hollifield, J.F. 87, 88
care provision 56–7, 63, 64, 68, 69, Holocaust denial 189, 226, 230–5
108–9; citizenship 12; dependency Homosexual Law Reform Society
relationships 26–7; employment 63, (HLRS) 155, 158
69; human rights 74, 94–110; homosexuality: criminalization 160;
pensions 42; poverty 84; prisoners decriminalization 157, 158; equal
205; underclass 84–5 opportunities 157; freedom of choice
generations 37, 45–8 135; hate crimes 156, 160; issues
Germany: asylum seekers 91; pensions 156–9; making gay rights 156–9;
39, 42, 50 normalization 165; organizations
Giddens, Anthony 10, 28, 177 155, 158–9; public identity 130; queer
Gilbert, Kevin 180, 181 theory 164–5, 248; religion 156, 161;
globalisation: anti-racism 115–17; sexual rights 142–6, 156–60;
feminism 97–9; sexual rights 159–60 traditional societies 160
Glorious Revolution 192 Honneth, Axel 197
Glucksmann, Miriam 55–71 Horwitz, Alan 211
Goffman, Erving 219 Howard, Michael 205
group rights: land 183; minorities 182 Hudson, B. 204
human rights: academic study 113;
Habermas, Jürgen 197, 241 autonomy 106; care provision 58–61;
Hacker, Jasper 42 constructionism 154; ECHR (1950)
Hale, Sarah 85, 86 10, 58, 89, 90, 117, 187, 201, 206,
Hall, Stuart 158 219; endorsement 95; equality 74;
harm: antagonism of interests 22, 23; families 90; gender differences 74,
criminal acts 28, 29; goods and 94–110; guarantees 17; history
services 28; hate crimes 228–30; 154–6; ICCPR (1966) 10, 213;
natural disasters 28–9; organised ICESCR (1966) 10, 81, 86, 89, 117,
non-liability 17, 29; protection 213; institutionalisation 178, 179;
27–31; public powers 29–30; warfare inventions 152, 153; Latin America
30 102; limitations 107–9; Marx (Karl)
hate crimes: criminal justice system 2, 6, 246; mental disorder 188,
225–6; criminalisation, expressive 209–23; natural law 154; ontology 7,
value 237–8; debate 227–30; 8, 74; principles consolidated 1;
emotional impact 228–9; harm prisoners 187–8, 201, 202, 204, 206;
228–30; homosexuality 156, 160; religion 154; social facts 3; sociology
legal sanctions 224; penalty and rights 94–7; theories 212–14;
enhancement 225, 226; terroristic Turner (Bryan S.) 8, 94–6, 177–8,
284 Index
180, 241; UDHR (1948) 15, 32, 34, International Lesbian and Gay
58, 95, 98, 213, 219, 222; Association (ILGA) 159
universalism 1, 77, 240; women 74, International Monetary Fund (IMF) 30,
94–110 31, 34
Human Rights Commission: Sub- International Women’s Rights Action
Commission on the Status of Women Watch 99
(CSW) 74, 98 interpersonal relations: rights 17, 18
Human Rights Watch 159 interpretation: rights 129–86
Hume, David 23, 35 Iraq War: civilian casualties 30
Irigaray, Luce 198
Iganski, Paul 224–39 iron cage 176, 187, 195
immigration: asylum seekers 91, 92; Irving, David 230–1, 232, 234
demography 49; migrant rights 87–8; Irwin, Sarah 38
no recourse to public funds 89, 90; Ishay, Micheline 154
racism 115, 123; residence 89; social Italy: care provision 63; pensions 42, 50
rights 89–90
imprisonment see prisoners Jacoby, Jeff 227
India: colonialism 175; sati 135, 146–8 Jefferson, Thomas (3rd President) 37
indigenous peoples: alcoholism 172–3; judicial review 92
assimilation 172, 173; Canada 172–4, Julius, Anthony 231
179, 180; citizenship 184; definition Juppé, Alain 43, 50
169–70; dispossessed first nations justice: alterity 187, 188, 199; classical
184; European expansion 168–71; mythology 191; environmental justice
founding fathers 174–7; indigenous 29; equality 227; generational
scholarship 180–2; land 178–9, 183, compact 47; social justice 5, 79, 81;
184; Latin America 170, 175; liberal universalism 14
scholarship 182–4; mestizo 170, 175;
minorities 183–4; religion 172, 173; Kahan, D.M. 229, 230
rights 130–1, 168–86; sovereignty Kant, Immanuel 193, 197, 199
169; Soviet Union 175; suicide 172, Kirkhope, Timothy 233
173, 174; treatment 171–4; Köhl, Helmut 43, 50
underclass 173; United States 172, Kymlicka, W. 183
177, 181, 182; vulnerability 178
individuals: autonomous see autonomy; Labour government 224, 226, 232, 237
egotistical see egoism; equal worth 17, Laclau, E. 242
21, 22; life-plans see life-plans; moral Laslett, Peter 46, 49
individualism 3–4, 141; personal/self Latin America: human rights 102;
identity 22, 23, 24; vulnerability 22, indigenous peoples 170, 175
25; well-being 17, 21, 22, 23, 25, 27 law: equality 27; natural law 154, 192;
inequality: capitalism 26, 33–4, 47; civic public law 5; rationality of law 1–2, 4;
stratification 80–1; distributive universalism 4
inequality 2; exercise of rights 27; Lawrence, Stephen 225
gender see gender differences; left-libertarian movements 114, 115,
see also equality 120
Institute for Jewish Policy Research Levinas, Emmanuel 14, 147, 187, 196,
(IJPR) 231, 232, 233, 235 197–8
internal critique: legitimacy 135; liberalism: alternatives 34–6; autonomy
meaning 134; plurality 141; rights 138; classical view 21–2, 27;
129, 134, 140–2 colonialism 183; Durkheim (Emile) 3;
International Covenant on Civil and feminism 198; indigenous peoples
Political Rights (1966) 10, 213 182–4; liberal democracy 32;
International Covenant on Economic, limitations 33–4; Marx (Karl) 8;
Social and Cultural Rights (1966) 10, positive rights 31–3, 193; progressive
81, 86, 89, 117, 213 34; punishment justified 192–4;
 Index 285
radical scepticism 22–7, 34–5; minorities: group rights 182; indigenous
radicalism 31–3; rights 17–18, 21–36; peoples 183–4
see also neo-liberalism modernity: cult of youth 38; indigenous
life-plans: active rights 22; autonomy peoples 176; sociology 131;
24, 28; culture 24, 25, 27; how to live universalism 240
them 23–5; resources 25 moral agency 242
Lipstadt, Deborah 230 moral individualism 3–4, 141
Lloyd George, David 39, 40 moral reasoning 199
Locke, John 169, 182, 192 morality: autonomy 22; “opinion
Lockwood, David 5, 53, 80–1, 85, 88, polling” 143, 144; socio-moral
93, 214, 216, 222, 246, 250 phenomenology 140
Lukes, Steven 6–7, 15, 35, 243 Morgan, Louis Henry 174, 175
Morris, Lydia 1–16, 73–4, 77–93, 214
MacDonald, Michael 210 Mudrooroo 181
malign dependencies 17 Murray, C. 84
Mann, Michael 138–9
markets: social justice 79, 81; status 78, Napier, Richard 210
79, 81 Narayan, Uma 106
Marshall, T.H.: citizenship 5, 7–11, 73, Nash, Kate 74, 94, 96–7, 101, 103, 104,
78–82, 85, 86, 88, 93, 138, 162, 188, 105, 106
212–14, 222, 246–8; civic rights 212; nation states see states
collective bargaining 86; human rights National Health Service (NHS) 66
9, 17; liberalism 31–2; market national interest 77
capitalism 8, 9; political rights 212; natural disasters 28–9
social rights 212–13 natural law 154, 192
Marx, Karl: bourgeois interests 6; natural rights 5, 192, 193, 203
egoism 6, 194, 246; emancipation 6, neo-institutionalism 114
7, 26, 31; employment relations 26–7; neo-liberalism: dominance 34;
evolutionary perspective 174; minimalist state 24; trade regulations
freedom of expression 6, 26; future 30–1
society 35, 36; human rights 2, 6, 246; The Netherlands: care provision 63,
inequality 26; liberalism 8; on the 65–6; child care 58; sexual rights 152,
Jewish question 6, 25, 194; power 157
relations 2; property rights 25, 174–5, New Labour 85, 188
246 Nicaragua: indigenous peoples 175
Meidner, Rudolf 52, 53, 54 Nietzsche, Friedrich Wilhelm 195–6
mental disorder: acquisition of rights Nozick, Robert 145
217–22; asylums 211, 215–18; Nussbaum, Martha 140
certification procedures 217;
characterizations 188; classification offences: motivation 229–30
211–12; community care 220–1; ontology 1, 2, 7, 8, 10, 74, 139, 240
compulsory detention 219, 221; organised non-liability 17, 29
confinement 215–16; denial of rights other: feminism 198; postmodernism
214–17; human rights 188, 209–23; 187, 196–7; self-regarding/other-
medicalisation 210–11; model of regarding acts 22; see also alterity
animality 215; moral management Owers, Anne 203–4
215–16; other 210; review tribunals
220; Royal Commission (1927) 218; Pakistan: fear of persecution 108
social class 221; theories 209–12; Parekh, Bhiku 135, 135, 146, 147, 183
United States 218, 220; voluntary Parkin, F. 3, 4, 5
admissions 218–19 particularities: citizenship 9; sociology
Meyer, J. 10, 87 and rights 11–15; universalism 1, 240,
Mill, John Stuart 31, 137, 149 247–9
Miller, A.M. 161, 171 passive rights 22, 81
286 Index
pensions: ageing society costs 46, 48–9; 200, 201; death in custody 204, 206;
annuities 39; average income 43, 47; discipline 200–2; gender differences
baby-boomers 47–8; basic state 205; imprisonment justified 187,
pension (BSP) 42; blanketing in 41; 191–208; prison population 205;
compulsory contributions 50; racial discrimination 206;
contribution holidays 44, 52; vulnerability 203, 206, 207
decommodification of life 40–1; prisoners and rights: clash of rights
defined benefits 43, 44, 47; defined 200–7; continuing controversies
contributions 42–3, 47; divided 204–6; correspondence 201; human
welfare state 42; fees/salaries 45, 50; rights 187–8, 201, 202, 204, 206;
funding deficits 44, 48, 50; gender judicial intervention 202–4;
differences 42; generational jurisprudence 201–2; life sentences
contract/accounting 45–8; grey 202; rule of law 200, 202
capitalism 45; gross domestic product property rights: life-plans 25; Marx
(GDP) 41, 48–9, 50, 53, 54; historical (Karl) 25, 174–5, 246
patterns 39–41; insolvency 44; labour public law 5
costs 43; market risk 42–3; punishment: classic critiques 194–6;
occupational pensions 18, 43, 44–5; communitarianism 194, 195;
paternalism 40; pay-as-you-go 41, 45, Durkheim (Emile) 195, 237; Foucault
46, 51; Pension Protection Fund (PPF) (Michel) 200; imprisonment see
44; pensioner poverty 38, 39, 49; prisoners; liberal justifications 192–4;
Pensions Commission 48; policy Marxism 194–5; retribution 193–4;
implications 50–1; political legitimacy vindictive passions 191, 194; Weber
39, 40; private schemes/privatisation (Max) 195
18, 42–5, 51; Puritan/baroque 39, 40,
46; redistribution 47; rights 18, race: prisoners 206; social
37–54; risk pooling 39, 46, 47; share differentiation 13
levy 52–4; state pensions 18, 39, 40, racism: European Union (EU) 225; hate
41–2, 43, 46, 48; tax relief 42, 43, 45; speech 224–5; immigration 115, 123;
wage-earner funds 52 racial harassment 229; racially
Petchesky, Rosalind Pollack 152, 155, aggravated offences 188, 224, 225;
161 see also anti-racism
Peters, B.G. 124 rationality: bureaucracy 5, 176, 245;
phenomenology: socio-moral iron cage 176, 187, 195; law 1–2, 4;
phenomenology 140, 144; Western civilization 176
structuration theory 140 Rawls, John 23, 137, 142
Phillips, Melanie 227 Reagan, Ronald Wilson (40th President)
Pickering, W.S.F 3 42, 43
Pinel, Philippe 215 refugees 90–1, 108
Plummer, Ken 130, 152–67 Rehn, Gosta 52
political economy: rights 17–71 religion: Durkheim (Emile) 3, 8; freedom
political philosophy: rights 133, 137–8 of expression 236–7; homosexuality
political rights 212 156, 161; human rights 154;
poor relief 38, 39 incitement to religious hatred 226,
positive rights: education 32, 33; 235–7; indigenous peoples 172, 173;
liberalism 31–3, 193; negative rights Islam 226, 235–6; postmodernism
protected 92; resources 32 197–8; religiously aggravated offences
postmodernism: citizenship 11; ethics of 226
care 197, 199; other 187, 196–7; resources: abundance 23, 35–6;
religion 197–8 life-plans 25; positive rights 32
poverty: gender differences 84; Richardson, Diane 163–4
pensioners 38, 39, 49 Richardson, G. 203
prisoners: asylum seekers 204; children rights work: sexual rights 152–67;
204, 205, 206; civil death 187, 188, symbolic interactions 153
 Index 287
Robinson, Mary 185 immigration 89–90; positive rights
Rojeck, C. 177, 178 32; status and contract 85–7;
Roosevelt, Franklin Delano (32nd transnational rights 90–1
President) 40 socially embedded views of rights 129,
Rorty, Richard 106, 140 136–7, 141–2, 146
Rousseau, Jean-Jacques 192 socio-moral phenomenology 140, 144
rule of law 195 sociological classics: punishment 194–6;
Ruzza, Carlo 111–28 rights 2–7; themes 245–6
sociology and rights: approaches
Samson, Colin 168–86 249–52; emergent field 1–16;
Samuelson, Paul 41, 53 foundation for rights 240–52; human
sati 135, 146–8 rights 94–7; ontology 1, 2, 7, 8, 10,
Scandinavia: care provision 63, 67, 74, 139, 240; political economy
69–70; child care 57–8; sexual rights 17–71; practice of rights 243–5
157 Soviet Union: indigenous peoples 175
Schroeder, Gerhardt 50 Soysal, Y. 10, 87
Scottish Enlightenment 25 state of nature 23
self-regarding/other-regarding acts 22 states: social closure 5; welfare see
sexual politics 163–4 welfare states; world culture 10
sexual rights: citizenship 162–4; France status: class, status and power 78;
152; globalisation 159–60; contract 79, 81, 85–7; equality 79,
homosexuality 142–6, 156–60; The 101–3; legal privilege 78; markets 78,
Netherlands 152, 157; rights work 79, 81; status, norms and institutions
152–67; Scandinavia 157; United 73–128
States 157, 161; women 160–1 Stones, Rob 129, 133–51
Short, Damien 168–86 stratification: civic see civic
Smart, Carol 198 stratification; dimensions 12;
Smith, Adam 35–6 education 213
Smyth, C. 165 Straw, Jack 205, 231
social class: citizenship 5, 7–11, 78–80; structuration theory: duality 129, 134,
environmental health 29; mental 139; phenomenology 140
disorder 221; stratification see civic Sweden: elder care 69–70; pensions
stratification, stratification; 52–3
vulnerability 85; see also status Szasz, Thomas 220
social closure 5, 246
social coexistence 23 Tanner, Väino 172
social cohesion 85, 245, 250 Tatchell, Peter 227–8
social constructionism 4, 10, 74, 177, taxation: capitalism 53, 54;
178 corporations 50, 52; payroll taxes 46,
social democracy 32–4 47, 51; reliefs, pensions 42, 43, 45
social exclusion causes 119 Taylor, C. 13, 183
social facts 1, 2–3, 243 terra nullius 131, 169, 178
social inclusion 82, 162 Thailand: migrant sex workers 148–50
social justice: bureaucracy 5; markets Thatcher, Margaret Hilda 43
79, 81 third country nationals (TCNs) 90
social movements 113, 114, 119–20 Third Way 195
social rights: boundaries 91–3; Thompson, E.P. 195
conditionality 82, 86; Marshall (T.H.) trade regulation: poorer countries 17,
212–13; Turner (Bryan S.) 7, 77; 30–1
underclass 81–4; welfare states 81 trade unions 33, 34, 39, 42
social theory: ethics 140; rights 133, traditional societies: care provision
138–40 67–8; homosexuality 160
social welfare: bureaucracy 5; transnational networks 113–14
citizenship 8; claimants 82; transnational norms 111, 112, 117, 118
288 Index
transnational rights 90–1 Vattel, Emmerich de 169
Truman, Harry S. (33rd President) 40 Vitoria, Francisco de 169
Tuke, Samuel 215, 216 vulnerability: indigenous peoples 178;
Turner, Bryan S.: citizenship 9–10, 177; individuals 22, 25; prisoners 203,
foundationalism 178, 241; human 206, 207; social class 85; welfare
frailty 18, 38, 58, 60, 95, 178; human states 34
rights 8, 94–6, 177–8, 180, 241;
ontology 74, 240; social rights 7, 77; Walby, Silvia 74, 94, 96, 97–8, 99, 102,
stratification 12; universalism 177, 106
180; Weberian theory of law 1–2, 4, warfare: collateral damage 30
196 Waters, Malcolm 10, 74, 94, 95, 178,
Turner, Lucien 172 241, 242
Tylor, Edward 174 Watts Miller, W. 3
Weber, Max: bureaucracy 4–5, 245;
underclass: debate 73, 81–5; gender class, status and party 78;
differences 84–5; indigenous peoples communal/societal action 78, 85;
173; social rights 81–4; see also class, evolutionary perspective 174; global
social class uniformity 176; natural rights 5;
unemployment 82–6 punishment 195; rationality 1–2, 4,
United Nations: Committee on the 175–6, 245; social closure 5, 246;
Rights of the Child 206; Declaration social honour 78, 80; social welfare 5;
on the Elimination of Violence against value freedom 2, 4, 196
Women 101; international Weeks, Jeffrey 163
conferences 98–9, 101 welfare regimes 214
United States: American Association of welfare states: care provision 57, 61, 62,
Retired Persons (AARP) 53; care 69; dual earner model 55, 69;
provision 63; Declaration of retrenchment 69; social rights 81;
Independence (1776) 212, 213; vulnerability 34; see also social
environmental justice 29; equality welfare
108; freedom of expression 227; hate White, S. 83
crimes 224, 227; hate speech 227; Wilde, Oscar 158
indigenous peoples 172, 177, 181, Wilson, R.A. 179, 180, 241, 242,
182; Medicare 48; mental disorder 244
218, 220; Pension Benefits Guaranty Wolfenden Report (1957) 158
Corporation (PBGC) 44; pensions 40, Wollstonecraft, Mary 108
42, 44, 45, 48; sexual rights 157, 161 women: CEDAW (1979) 74, 99, 100,
Universal Declaration of Human Rights 104–5, 250; Declaration on the
(UDHR) (1948) 15, 32, 34, 58, 95, Elimination of Violence against
98, 213, 219, 222 Women 101; human rights 74,
universalism: care provision 59; 94–110; international conferences
contested space 242; differentiated 98–9, 101; International Women’s
universalism 13, 104, 242, 247; Rights Action Watch 99; rights,
feminism 96, 103, 187, 247; human impact 160–1; Sub-Commission on
rights 1, 77, 240; justice 14; law 4; the Status of Women (CSW) 74, 98;
legal discourse 108; modernity 240; see also feminism, gender differences
ontology 2, 7, 8, 10, 240; Woodhouse, D. 92
particularities 1, 240, 247–9; Turner work see employment
(Bryan S.) 177, 180; universal World Bank 30, 31, 34
personhood 73, 87, 89 World Congress of Families (WCF)
utilitarianism 182, 192–3 161–2
World Health Organisation (WHO) 25
value consensus 35, 36 World Trade Organisation (WTO) 30,
Van Reenan, J. 83 31, 34