Studying the Rights Discourse: A Tentative Socio-Legal Framework
University of Westminster - School of Law
THE NORDIC SOCIOLOGY OF LAW, Lemann Kristiansen, Bettina, ed., Copenhagen, DJØF Forlag, 2010
U. of Westminster School of Law Research Paper No. 10-37
A recent upsurge in rights talk has left a mark on many areas of law and social policy. Areas such as freedom of expression and hate speech that have traditionally been debated in terms of rights, as well as family law and the welfare of children, human trafficking and prostitution, national security and anti-terrorism legislation, economic policy and market development, to mention but a few, have all come to bear the imprint of the increased significance of rights arguments in public political discourse. The growing resort to the use of rights in social and legal contexts arguably affirms the retreat of welfare ideology from the arena of economy and social policy, conferring a greater political and legal significance on rights discourse as a means of seeking social justice. Notwithstanding the growing importance of the role of rights in potentially linking the spheres of law, politics and justice, the sociological studies of law remain reluctant in conceptualising and exploring rights as normative constructs.
This paper employs the concept of late modernity to explore how rights are used in public political and legal discourse as part of the ongoing process of organising and reorganising social relations and institutions. It starts by introducing the notion of late modernity as the second stage in the development of modern society, when the foundations and structural make-up of industrial society are transformed and a radical form of modernity is born. The chapter then goes on to argue that since social systems such as law, polity and economy can no longer respond fully to the moral diversity in their environments, rights are increasingly invoked through law to replace the discourse on moral issues that question the foundations of our form of social organisation. However, whenever rights are employed through law, they become juridified, losing their emancipatory power and moral significance for reconsidering social relationships. The paper ends by demonstrating the need to study the rights discourse in the context of ongoing political resistance and struggles in society.
Number of Pages in PDF File: 35
Keywords: Law, justice, rights, morality, public policy, legal discourse, late modernity, juridification, emancipation, socio-legalAccepted Paper Series
Date posted: October 13, 2010 ; Last revised: October 14, 2010
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