This piece is written as a reflection on a reading for a Human Rights Perspectives class. It was not a full chapter, but an excerpt. It is not intended to be a formal piece of writing, but rather a piece which is a product of writing practice.
Patricia Williams is a legal scholar, specialising in critical race theory. She was one of ten black women in her graduating class of five hundred and thirty-six at Harvard Law. Williams is currently a Professor at Columbia University.
Critical Race Theory is a framework which is developed out of the social sciences, but is applied to law upon the assumption that the legal system perpetuates systemic racism, as it is based on ‘white supremacist’ values. A question that is regularly asked by Critical Race Theorists is, ‘what would the legal system look like if it was predominantly run by people of colour?’. However, it is not a theory that seeks to discard of legalisation, but rather sees legalisation as an avenue for emancipation and equality.
It can also be seen as reactionary to Critical Legal Studies, as critical race theory has been known to critique CLS for its failure to pay attention to racial oppression and its sources.
What I will be discussing is an excerpt from her 1991 work, The Alchemy of Race and Rights: A Diary of a Law Professor. This particular chapter focuses on her experience contrasted with her colleague, Peter Gabel’s experience when renting a house in New York. According to Williams, Gabel is looked at as something similar to a founding father of CLS. From the formative reading and research I have done of Gabel, he seems like a person committed to the idea of enriching social relationships and feels that we are a society that is ‘suffering’ from isolation, as if it were an illness. In his article for Tikkun, called “The Spiritual Truth of JFK”, he states:
“There is no way for the forces of good to win the struggle between desire and alienation unless people can break through the gauzy images of everything being fine except the lone nuts, a legitimating ideology that is actually being supported by our denial of he pain of our isolation and our collective deference to the system to Authority that we use to keep our legitimating myths in place.”
Tikkun is a Jewish magazine covering politics, culture and society, so perhaps it could also be said of Gabel that his views of what society and community should be is influenced by a Jewish worldview, which places great importance on the unity and health of a community. It also places great importance on being generous and compassionate for people within a community.
In Williams’ piece, she discusses how she feels Gabel tries to make his transactions (in this case, the agreement between his landlord and himself as a lessee) informal, so that he does not feel like he is exercising his authority as a white male in a profession. She states that by becoming informal and giving up his (perceived/actual) authority, it is a way he feels he can gain trust form the lessor. Her experience was on the opposite side of the spectrum since she feels the pressure that comes from the (perceived/actual) expectations of being a black woman. In order to gain the trust of her lessor, she made sure to sign all needed documentation, and felt the need to assert the fact she was a professional.
It is with this narrative she draw the analogy of the dichotomy between CLS and CRT. Williams empathises with the end goal of Gabel and CLS, which is to assert that “one’s sense of empowerment defines one’s relation to the law in term of trust/distrust, formality/infromality, or right/no-rights (“needs”)”. However, she greatly criticises the presuppostion of CLS, which is that rights-talk is “disutility in political advancement”. In other words, rights-talk, and perhaps the legalisation of rights, causes the creation of distance “from situations that could profit from closeness and informality”. Also, CLS advocates believe that the notion of rights is causing agendas to be pitted against each other, rather than being used for their advancement. Instead, CLS scholars opt for the use of framing rights as “needs”.
Williams takes opposition to this and states that it is the rights-talk that has been able to give black america the language of emancipation. That it cannot be done away with altogether, because African Americans tried to have their needs heard, but were historically neglected, and were continuously disempowered. “‘Rights’ feels new in the mouths of most black people. It is still deliciously empowering to say,” she states in her conclusion. Rights language, in her opinion, presented black americans with an avenue for change and, to frame it in a Critical Race Theory view, they enabled black americans to take back some power from a government entrenched in ‘white american’ values. In conclusion, she implores that CLS not discard the language of rights, but rather see that the “goal is to find a political mechanism that can confront the denial of need.” Williams agrees that CLS has done an important work in ‘unmasking’ the rights mythology of liberal America, and thus “reveal the course of much powerlessness masquerading as strength… [and the] universalism of need and oppression among whites as well as blacks.” But she further suggests that the unveiling was not enough, and rather, it must also be used for good.
Williams then concludes the piece by stating that these rights should be ‘given’ as opposed to ‘discarded’. In other words, right and needs are not seen as mutually exclusive, but rather, in my opinion, she is saying that rights need to be given as the remedy for needs.
It seems like such a strange conclusion to draw, as it does seem like a common sense conclusion to say that if there is a need and it can be remedied by the assertion of a right, go ahead and assert the right. However, I do think that the reason why this does not happen as a matter of common sense, and why CLS has taken an oppositional stance to rights language, is because ‘rights’ supports very self-driven, individualistic thinking when taken out of the context of protecting disempowered minorities. Rights language was not supposed to be the language of the oppressors, but of the oppressed. It was the framework of liberated countries who were tired of monarchies and theocracies, plagues with elites. It gave the working class man a language to fight against such powers. I feel on the quest to make sure that rights were to be the main flag-wavers of equality, the above view has been forgotten, or at least, skewed. As a western, liberal collective, we have not been able to grasp the fact that, although we may all have these rights because of the fact we are human beings, some of us are already living out this identity, and others are not. Furthermore, I think the part we are really missing, or rather, what I think is lost in human rights law is the importance for those who are living with their rights fulfilled to advocate for the rights of those who are not living them out with similar freedom. I get the feeling that people believe rights are for simply for them as an individual, and as long as they are being met, then the system is working. When does rights language implore us to seek, actively search for a person who has a limitation imposed on their rights? Taking it back to Gabel, since his work is more about searching for ways, including language, that is going to inspire deeper social connections and relationships, it becomes understandable, why ‘rights’ may be unsuitable for this job.
Conversely, I agree with Williams, in that rights-talk cannot be done away with altogether, because when the disempowered share their needs, it is not always listened to by those in power. However, I do not think we can do away with framing problems as needs either, because it is by understanding the need, we can understand which rights to assign. But more importantly, and perhaps, something that is of fundamental importance, we understand the actual human being behind a need and are made to empathise with them. We could actually understand the grievances of a particular individual or people group, rather then skipping this procedure of getting close-getting proximate- because we assert to already know what problems people have due to our robust, systemised, rights framework.
It has stirred up the question of whether the notion of ‘human rights’ creates compassion. This is important because is it not compassion that will make us act with an active duty to protect people’s rights? To actually, actively seek the needy, marginalised and disempowered? Rights, when expressed in a legalistic manner, appear to be obligations that simply need to be met. Yes, they could be espoused as fact. However, just because something is a fact, may compel people to believe in it, but that does not necessarily mean it compels them to live out such a framework – embody such a framework.
There will potentially be more to come in this space of human rights discourse. Thoughts welcome.