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62 Tex. L. Rev. 1363 (1983-1984)
Essay on Rights

handle is hein.journals/tlr62 and id is 1385 raw text is: Texas Law Review Volume 62, Number 8, May 1984 An Essay on Rights Mark Tustnet* I. The Critique of Rights The liberal theory of rights forms a major part of the cultural capi- tal that capitalism's culture has given us.' The radical critique of rights is a Schumpeterian act of creative destruction2 that may help us build societies that transcend the failures of capitalism. The first section of this Article develops one version of the critique of rights. The second briefly explores the epistemological basis of that critique.3 Rights, most people believe, are Good Things. In this Article I develop four related critiques of rights discussed in contemporary American legal circles. The critiques may be stated briefly as follows: (1) Once one identifies what counts as a right in a specific setting, it invariably turns out that the right is unstable; significant but relatively small changes in the social setting can make it difficult to sustain the claim that a right remains implicated. (2) The claim that a right is * Professor of Law, Georgetown University Law Center. A.B. 1967, Harvard University; M.A. 1971, J.D. 1971, Yale University. In memory of my father. I would like to thank Elizabeth Alexander, Steve Goldberg, and Mike Seidman for their comments on earlier versions of this essay. Particularly as to the first, the usual disclaimer may be especially required. 1. I take this to be the defensible core of E.P. Thompson's conclusion that the notion of the rule of law is itself an unqualified good. E.P. THOMPSON, WHIGS AND HUNTERS 267 (1975). Thompson carefully qualifies that conclusion by his emphasis on the rule of law as a cultural achievement of a specific time and place. Id He is usually taken to be making a broader claim, one that is independent of the specifics of British culture of the eighteenth century. As I argue below, such a claim is wrong. See infra subpart I(D) (discussing the political disutility critique of rights). 2. See J. SCHUMPETER, CAPITALISM, SOCIALISM, AND DEMOCRACY 81-87 (3d ed. 1950). 3. An early footnote may be the place to identify two themes in what follows. The first, close to the surface, is the repeated interplay between the notion that social life is continuous, a seamless web, and the notion that social life is subject to radical discontinuity as people's attention shifts from their location in a context to their isolation in their individual bodies. The second, perhaps only a more submerged version of the first, is the role of modernist sensibility in con- structing the critique of rights. 1363

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