What’s Political about Rights? A Social Movement-Based Approach
This paper argues for an understanding of the structure and nature of rights rooted in the practices of the social movements within which rights claims originate. The most influential theories of rights have been seriously distorted by the institutional orientation of much of the analysis. The dominant approach to thinking about rights, which I term the political moralist approach, understands the structure and nature of rights according to some higher level moral theory that is enacted by judges through the law. The point and purpose rights have in political struggle is sidelined. If there is any place for social movements within the legalistic scheme of political moralists, it is ancillary to that of courts. This top-down method has been criticised by political realists for neglecting the significance of normative concerns, such as power, legitimacy and disagreement that are distinctive of the real-world context in which rights are claimed. They rightly argue that the political moralist approach to thinking about rights produces theories that are too remote from the practice of rights to serve as a useful guide to its critique and reform. Yet their insistence on understanding the practice of rights entirely in institutional terms – as a matter of legal arbitration and the behaviour of sovereign states – means they omit the point and purpose rights have for participants within the social movements within which rights are constructed and fought for. An understanding of rights that pays attention to these non-institutional, social movement practices will serve as a corrective to the individualist view of rights produced by institutional accounts and has the potential to restore the original rebellious dimension of rights discourse.