Reuniting Rights with Duties: A Relational Approach to Rights Struggles

Christopher N. Roberts, University of Minnesota - Twin Cities

Abstract

The idea of fundamental, individual rights is foundational in liberal, democratic societies such as the United States. This notion of rights as an individual phenomenon—as opposed to a social phenomenon—occupies a central place in contemporary legal debates and social struggles. A close analysis of the recent District of Columbia v. Heller gun case reveals that individual perspectives on rights tend to eclipse the underlying social relationships that make rights what they are. The law maps these relationships through the concepts of rights and duties. But when rights are separated from duties as they typically are, the associative quid pro quo that is central to any legal or social relationship is lost. Legal rights are reduced to mere politics—one-way paths directed toward individual interests, restricted purposes, and exclusive ends. As opposed to tacitly accepting (or reproducing) a version of rights that focuses exclusively on the individual, this article argues that scholars from all disciplines need to be more deliberate, discriminating, and systematic in how they think about and study rights. In particular, they must elevate the often-overlooked “duties” portion of the rights equation. The analytic framework outlined below offers a blueprint for the empirical study of rights by partitioning the concept into two distinct dimensions: (1) the individual dimension, and (2) the overlooked and underappreciated relational dimension. Within the latter, rights become relationships rather than inherent and individual; the government becomes a constructive force rather than a destructive adversary; and the autonomous, independent, individual rights bearer becomes an integrated, socially embedded, member of society. Identifying new alternatives and locating the appropriate legal solutions for addressing social dilemmas requires understanding rights as both an individual and a relational phenomenon. By reuniting rights and duties within the analytic framework outlined in this article, scholars can glean a much more nuanced, sophisticated, and precise understanding of how rights operate in the course of contemporary legal struggles.