Rights?

Finally I should note a troublesome consequence of the reification of rights. Once my experience in marching to oppose U.S. intervention in Central America is transformed into an example of exercising a right, I may find myself pulled in direction that I would resist were I to confront the issues directly. Having thought of myself as exercising a right to free speech, I will find myself asking whether the Nazis in Skokie or pornographers also have rights to free speech of course one can resist this pressure by defining the right to free in one way rather than another. Or one can concede the need to protect the “rights” of Nazis and pornographers as a prophylatctic in a society in general devoted to advancing the cause of the party of humanity. But the problem arises because of the reification of right in the first instance. If we treated our experiences of solidarity and individuality as directly relevant to our political discussions, instead of passing them through the filter of the language of rights, we would be in a better position to address the political issues on the appropriate level.
Mark Tushnet, 1984 “An Essay on Rights.” 62 Texas Law Review 1363.

I find this critique of rights talk to be fascinating, and the logic here is one of the reasons why I am trying to move away from phrasing things in terms of 'rights'. I think Tushnet raises a good point here, and one that is clearly related to Marcuse's repressive tolerance. I personally am not a liberal, and am certainly not Voltaire, there is no way in hell I would 'die' for the Nazi's right to hurl rascist insults. I think this notion is something the left does need to think about, especially now.

In times of weakness it does seem that the left falls back on the notion of 'rights', to put forward its demands and to protect itself. But the question remains should the left be committed to a 'right' of free speech, or should it adopt the Marcusian solution. Of course, Marcuse's ideas attract a lot of criticism, and they are pointed towards as an example of left totalitarianism etc., though as Marcuse says :

I hope that nothing in my essay on tolerance suggests that I repudiate every sort of tolerance. That seems to me such idiocy, that I cannot understand how such an interpretation [99] has come into being. What I meant and said was that there are movements, which manifest themselves in propaganda as well as action, of which it can be predicted with the greatest certainty that they will lead to an increase of repression and destruction. These movements should not be tolerated within the framework of democracy. Here is a classic example: I believe that if, in the Weimar Republic, the Nazi movement had not been tolerated once it had revealed its character, which was quite early, if it had not enjoyed the blessings of that democracy, then we probably would not have experienced the horrors of the Second World War and some other horrors as well. There is an unequivocal criterion according to which we can say: here are movements that should not be tolerated if an improvement and pacification of human life is to be attained.

I think these notions call for a rethinking of 'rights talk' in the broader British left. Now of course critiquing this is not a new thing, as is evidenced by the dates of these works, however, the British left has never really thought through such criticisms. This is especially important when we look at the ever more repressive laws coming out of Parliament, we need to question we oppose them. Because remember even the BNP disputes its 'persecution' on the basis of 'freedom of speech', I'm not saying we should give up on 'rights' (though I probably think we should), merely that we at least give the concept a bit of thought.