What's Wrong with Rights?

ion for someone who has never had their abstractions taken away from them." 20 The emphasis that the "minority critiques" place upon CLS's "composite biography" is problematic. The claim that this "composite biography" goes some way toward explaining the failings of the CLS "critique of rights" is overly determinist. The "minority critique" implies that social origins determine political positions. This argument is weak because it does not lend itself to evaluation. Furthermore, this line of argument has the negative consequence of implying that, because CLS "founding fathers" are white and privileged, they hold the views they do. Reliance on this type of argument avoids the need to address the substance of the CLS "critique of rights." As we have also argued, CLS has paid inadequate attention to the positive face of rights and rights struggles, but we contend that this is not primarily for reasons having to do with "position" and "experience." Rather, we have been concerned to suggest what we believe is the stronger explanation; that the deficiencies in the CLS "critique of rights" result from theoretical, not biographical, failings. The lack of attention in the "minority critiques" to the theoretical failings of the CLS critique of rights leaves those problems substantially unaddressed and hinders their ability to move significantly beyond simply stating that rights and rights discourses have been useful and may be in the future. In addition, it is significant that the "minority critiques" are constructed in relation to or, perhaps more accurately, as a reaction against, the CLS "critique of rights." Thus, the "minority critiques" tend to constitute simply a reaction against the CLS position. This raises considerable problems for the "minority critiques" and for the future of their project. The consequence is that, while the "minority critiques" raise crucial points of contention, they do not adequately ground the political project they seek to advance. We draw attention to this because we support what we take to be the core of the "minority critiques" project: to recuperate the crucial history of minorities' struggles for rights and to think strategically about the potentialities for utilizing rights discourses. Their failure, however, to take up the theoretical problems leaves them either appropriating notions central to the CLS "critique of rights" or simply turning them on their head without transforming them. The failure to directly challenge the theoretical underpinnings of the CLS "critique of rights" in a sustained manner weakens the "minority critiques'" ability to deal with significant issues regarding rights issues they correctly identify, but are unable to 120. Robert Williams, Jr., supra note 88, at 125. [Vol. 9:1 ]WHAT'S WRONG WITH RIGHTS? overcome. Therefore, while they are extremely important for opening up the space in which to debate the potentiality of rights, the "minority critiques" fail to challenge the theoretical underpinnings of the CLS "critique of rights" and their ability to move significantly beyond CLS is hindered. Matsuda's contribution, in particular, commences with the assumption that, while the CLS critique is essentially sound and is useful to minority scholars and interests, it requires supplementation.' 2 ' As is evident from our criticisms of Tushnet and Freeman, the assumption that the CLS critical project is fundamentally sound, but only requires an infusion of minority experience in order to stave off its critics and develop a positive political vision and program, is one we do not share. Many of these contributions do not, therefore, break out of the limiting theoretical-political embrace of the CLS "critique of rights," but rather, supplement it. One potential consequence is that the embrace may be tightened. The problem with the approach of supplementing CLS is revealed in the way in which, for example, Matsuda treats the distinction between reparations and liberal rights. While her analysis and support for the concept of reparations for Japanese Americans and native Hawaiians is strong, the ready acceptance of much of the CLS critique of liberal rights as overly individualistic, co-optational, and the like is unfortunate because it fails to challenge these presuppositions. The "minority critiques" identify several problems in the CLS "critique of rights." First, the CLS critique treats reform as integrative and co-optive. A second problem is their contention that rights encourage "false consciousness."'2 2 Third, and perhaps most significant, is CLS's inattention to rights, struggles, and the deployment of rights discourses. But it is the theoretical weaknesses of CLS's "critique of rights" which create these problems. A core weakness in the "critique of rights," as the "minority critiques" correctly point out, is its inattention to rights struggles. But 121. Matsuda, supra note 88, at 330. Delgado takes a very different tack by asking whether CLS has "what minorities want" and by answering in the negative. Delgado, supra note 88. 122. For a discussion of this point, see Delgado, supra note 88. Delgado argues that the CLS critique of reformism, that it merely legitimizes existing society, is wrong because minorities know that rights victories do not necessarily mean social change is immanent, and that victories may or may not help or hinder the strategic goals of the movement. However, he offers no account of what sorts of strategies might be more likely to aid social movements. While he criticizes the CLS "critique of rights" for their support of the concept of false consciousness, this criticism is framed in very circumscribed terms: "One should begin by asking whether the concept of false consciousness holds true for minorities." Id. at 311. 1990]