Introducing: Entitled

The University of Chicago Podcast Network is excited to announce the launch of a new show, it’s called "Entitled" and it’s about human rights. Co-hosted by lawyers and UChicago Law School Professors, Claudia Flores and Tom Ginsburg, Entitled explores the stories around why rights matter and what’s the matter with rights.

We’re taking a much needed break at the end of the summer, so we're going to share the first episode of that show with you this week, and recommend you go subscribe! We’ll be back in two weeks with a new episode of Not Another Politics Podcast!

Listen on Apple Podcasts or wherever you enjoy podcasts.

Transcript

Will Howell: 

Hello Not Another Politics Podcast listeners! We're taking some much-needed time off here at the end of the summer, so this week we're going to be sharing the first episode of new University of Chicago Podcast Network show called “Entitled.” Hosts, lawyers, and law professors Claudia Flores and Tom Ginsburg have traveled the world getting into the weeds of global human rights debates. On“Entitled,” they use that expertise to explore the stories and thorny questions around why rights matter and what's the matter with rights? Please enjoy the show and we'll see you in two weeks for another episode of Not Another Politics Podcast.

Tom Ginsburg: 

Back in 2014, I was in Libya and I was meeting with human rights activists who had just a few years before helped to overthrow the dictator Muammar Qaddafi.

Reporter: 

Colonel Qaddafi's death brings and end to 42 years of dictatorship in Libya after seizing control of the country through a military coup in 1969.

Tom Ginsburg: 

And he had ruled Libya with an iron fist for 40 years. And of course during that time, there was no freedom of expression, you couldn't form political parties, a lot of human rights abuses.

Barack Obama: 

This marks the end of a long and painful chapter for the people of Libya, who now have the opportunity to determine their own destiny in a new and democratic Libya.

Tom Ginsburg: 

When I was meeting with these human rights activists, we got into a discussion about what rights should be included in the new Constitution for the hopefully democratic Libya. One of the participants raised his hand and said, "When I was on my way here from Benghazi, our plane was delayed on the Tarmac for several hours. We need a right against plane delays."

Claudia Flores: 

He was joking right? I mean, it's not a terrible idea, but he was joking.

Tom Ginsburg: 

Well, I thought so, but then I looked around the room and several heads were nodding.

Claudia Flores: 

So then what happened?

Tom Ginsburg: 

I explained to them that if they wanted to prevent plane delays, they could do so through an ordinary law or some other rule, it didn't have to be called a right and put in the highest law of the land. But then I got to thinking, why is that? What determines our menu of what we consider to be rights and what we don't consider to be rights?

Claudia Flores: 

You probably assume you have rights, maybe even inalienable ones. And in most regions of the world, though they aren't always agreed upon, humans have converged on a basic set.

Tom Ginsburg: 

The right to life, the right to be free from torture, the right not to be enslaved.

Claudia Flores: 

Freedom from discrimination, the right to speak your mind, freedom of religion.

Tom Ginsburg: 

But what if I told you that a lot of what you think about rights is probably wrong? I'm Tom Ginsburg.

Claudia Flores: 

And I'm Claudia Flores.

Tom Ginsburg: 

And this is Entitled, a podcast about why rights matter and what's the matter with rights?

Claudia Flores: 

Today, why are we so entitled? So Tom, I think we should do some introductions here.

Tom Ginsburg: 

Yeah. Well, I guess we're two Entitled law professors at the University of Chicago Law School.

Claudia Flores: 

I am starting to regret the title of this show.

Tom Ginsburg: 

And we've been privileged to spend our careers focusing on rights, human rights, constitutional rights here in the United States and elsewhere around the world.

Claudia Flores: 

And we spent our careers before that trying to protect them, working for civil and human rights organizations. We both believe the world is a better place when we as human beings are entitled to rights, but we also see how they generate conflict and confusion, so we've become increasingly interested in exploring questions around them.

Tom Ginsburg: 

It turns out that even defining what rights are and whether they even exist, especially human rights, is a lot harder than you might think. We work with a lot of smart people, legal scholars who work in all kinds of areas of the law, and we asked them the most basic question we could think of: do human rights exist?

Speaker 6: 

Of course, there have to be human rights. I mean, I don't know what that means.

Speaker 7: 

There's a concept of human rights. I mean, in practice, I don't know if they're honored.

Speaker 8: 

I think human rights are something like, you find a supermajority of highly educated people in a variety of countries and they try to impose a norm on the world.

Speaker 9: 

They're not like the abominable snowmen in terms of their ontological status.

Tom Ginsburg: 

Okay, well, it turns out that some of the world's top legal scholars can't even agree on the status of human rights or even on their basic existence. How can we even start such a discussion?

Claudia Flores: 

This brings to mind a skit from the late George Carlin in the early 2000s.

George Carlin: 

I have a right, you have no right. We have a right, they don't have a right. Folks, I hate to spoil your fun, but there's no such thing as rights. Okay? They're imaginary. We made them up like the Boogeyman.

Claudia Flores: 

I actually try to remind our students, and I think they find this sort of shocking, that all law is really just us making stuff up.

Tom Ginsburg:

Yeah, it's all just an idea if you think about it, but, of course, some ideas have more impact than others.

Claudia Flores: 

Exactly. Where do rights come from, right? There are people who think rights come from some higher power and there are others who think that they were written by man or people. And in a way, that sort of makes a difference because if you think they come from a God, then you think there's some predetermined set of rights and you don't really have any control over them. There's this entire tradition of humanism on the other hand, if you think rights come from humans, that says that humans have rights by virtue of being humans, they're invested with some kind of entitlement, and that doesn't really require belief in a higher power.

Tom Ginsburg:

There's the question about what are the kinds of things that we have rights in?

George Carlin: 

Personally folks, I believe that if your rights came from God, he would have given you the right to some food every day and he would have given you the right to a roof over your head. God would have been looking out for you. God would have been looking out for you.

Claudia Flores: 

A lot of people around the world feel that way, that the most important rights are the rights that allow you to live, feed yourself, take care of your family, to have a shelter over your head. What's really interesting when you come from the United States is that those are not the rights we see in our Constitution.

Tom Ginsburg: 

Yeah, our tradition tends to focus more on civil and political rights and not usually taking into account basic needs. Of course, that's changing. I mean, now we're having a national conversation about exactly what interests are so important that everyone should be entitled to have them protected. And this brings up the point that rights might be different from one country to another.

George Carlin: 

Why would God give different people in different countries different numbers of different rights? Boredom? Amusement? Bad arithmetic? Do we find out at long last after all this time that God is weak in math skills? It doesn't sound like divine planning to me, it sounds more like human planning.

Tom Ginsburg: 

So here Carlin's saying that the rights you have depends on where you live and what that country has decided to give to you.

Claudia Flores: 

That's true, but there is a lot of convergence around the world in terms of the kinds of rights and the number of rights.

Tom Ginsburg: 

International human rights really do exist, not withstanding what he says, in the sense that we do have a list, a common basic list which the international community has said everyone is entitled to.

Claudia Flores: 

Okay, well, let's start there. International human rights do exist. At this point, most countries in the world have signed onto major human rights treaties and have agreed to enforce them. And probably more importantly, most countries have passed laws and policies to implement human rights. In fact, you will find the most basic rights in treaties in most of the world's constitutions, but I haven't really answered the question we're trying to ask here, which is a much deeper question. And to be honest, I don't think it's one we lawyers or even law professors are well equipped to answer.

Tom Ginsburg: 

I think we need to go deep, Claudia. The question of rights existence is really kind of a philosophical question when you get down to it. For this, we approached one of our contemporary philosopher kings, John Tasioulas, who is a professor of ethics and legal philosophy at Oxford University in the United Kingdom and he's written extensively on the origins and nature of human rights.

John Tasioulas: 

I remember a real eye-opener for me was once attending a conference that involved basically people in public health and a woman began her talk. She said, "Look, it's really important to understand that health is a human right." And just out of curiosity, I said, "Well, what do you mean when you say that health is a human right?" and she goes, "Well, it's a very important interest of all human beings," and I think a lot of people just use it in that way. And I'm not here to police language, but there is this other, more constrained notion where you think of it in terms of their duties.

John Tasioulas: 

If we have a body of human rights law, what gives it its integrity is that it has a special connection with a particular part of morality, the part of morality that I call the human rights morality. Now, it doesn't automatically follow that anything that is a human right and morality should be made into a legal right. You've got to ask the question, would it be a good thing? Would it be counter-productive? Would it, for example, lead to the state having excessive power to intrude into the private domain? The point of it is to implement human rights morality. It's not a straightforward one-on-one correspondence. Moral itself brings up further moral questions about whether it would be effective or legitimate to implement moral rights to legal rights.

Claudia Flores: 

When we designate something as a right, there has to be a corresponding duty for someone or some entity to do something or not do something. Usually we're talking about the state, but as we're going to explore this season, sometimes the duty is not a state duty, it is the duty of a private person, it could be the duty of a corporation, it could also be either an individual or a group, but someone has to have some obligation, something they need to do or not do in order for a right to really be satisfied.

Tom Ginsburg: 

And we don't often think of them in those terms, regardless of the right. For example, if I have a right to be free from arbitrary detention, that requires the state hire a public defender if I can't afford a lawyer to make the case that I'm innocent, the state has to invest in courts that I can approach to get a fair judgment, and it has to invest in a working system of sentencing in criminal law and procedure, along with a system of appeals in case someone makes a mistake in the process.

Claudia Flores: 

So when we call something a right, there are serious consequences. You might need to invest resources, create infrastructure and that means we do want to be careful not to go too crazy naming lists and lists of rights, and I'm starting to think that maybe plane delays should not be at the top of that list. So how do we go about deciding this? What interests, and we have many of those, rise to the level of rights?

Tom Ginsburg: 

Let's ask our students, we always learn a lot from them. What are the kinds of interests would you think ought to be protected as rights?

Speaker 12: 

Shelter.

Speaker 13: 

Food and nutrition.

Speaker 14: 

Freedom of religion.

Speaker 15: 

The right against physical violence.

Speaker 16: 

Education.

Speaker 17: 

Physical freedom.

Speaker 18: 

Political participation.

Speaker 19: 

The right to life.

Speaker 20: 

Self determination.

Speaker 21: 

Sufficient means, so that can be income or something else depending on how the country is operated.

Speaker 22: 

Everyone should have the right to at least all opportunities.

Tom Ginsburg: 

Well, you got a really broad list there from the students. A right of everyone to have all opportunities is kind of like a right to everything isn't it?

Claudia Flores: 

Yeah, that would be quite a right, but the students also named some other really important rights and I just don't know how one goes about prioritizing them. The question is whether or not we need to? Do we have too many already? Do we need more? I think John will have more to say about this.

John Tasioulas: 

I think that it's not really a question of the number of the rights, but it's the question of what exactly are we asserting when we say something is a right. Prudence often dictates that we shouldn't try to implement in law, especially international law, all of the rights that we think are genuinely human rights as a matter of morality, partly because law often has to be pragmatically attuned to a certain kind of compromise. And if we're to get compliance with sufficient of what we regard as important, sometimes it might be necessary not to press the point and try to implement everything that we want. I think this has been a problem with human rights laws that it's tended to veer towards utopian visions as opposed to saying, "Look, amongst these morality climates of human rights, which of the ones that really we think international law can play a really good role in securing compliance, not simply in announcing something an attractive vision?"

John Tasioulas: 

We're going to specify all these duties in a way that they don't regularly trip each other up by generating these conflicts, that they all have to hang together because if they don't, then you're just reducing it to a menu of interests. And if you have that menu of interests, you're going to be generating constant conflict. One of the things that could happen in that process is things that are not so important end up trumping things that really are important, things that really are duties attached to human rights get defeated by things that are extraneous. Often you hear people say, "Oh well, what does it matter if I specify the human right in really, really generous terms?" Well, of course it matters because you won't be able then to satisfy all the rights you're talking about, you'll be making trade offs and you'll end up trading off the wrong thing.

John Tasioulas: 

Human rights is meant to help us specify those things that are relatively immune to being traded off.

Tom Ginsburg: 

So as John is explaining, before we get to the question of whether there are too many rights, we need to focus on defining the ones that we have, how they relate and what duties are triggered to satisfy them? Only by doing this can we move beyond just listing a bunch of rights that in the end are reduced to just kind of aspirations, things we want. We want the right to be free from torture to trigger a different kind of duty than the right to pursue happiness, for example. They are just two very different rights.

John Tasioulas: 

I want to distinguish between human rights, which I think have to be the same for all, and constitutional rights. So arguably the right to health you have as a human being might be less demanding versus the right to health you might have as an American citizen given America's resources, for example, so I don't want to telescope those two ideas; the right I have as a human being and the rights that should be accorded me as a citizen of this particular country. For me, not everyone has this sense, but I think if the rights that are human rights vary considerably from one country to another, then for me that strikes against part of the essence of what it is to be a human right.

John Tasioulas: 

But imagine if someone said, "Your right not to be tortured varies depending on which country you live in," because, of course, that also is a right that implicates huge resources. It's not simply a matter of failing to torture, it is a matter of taking active steps to prevent torture, training police and soldiers and others not to torture, having judges who will try people who are accused of torture. Now, given that that involves huge resource implications, are we going to say, "Your right not to be tortured is less in a poor country, less demanding than in a rich country"? I think it's hard for us to accept that.

Tom Ginsburg: 

That's really interesting. I mean, constitutional rights can and do vary, though less and less. In some countries, America may be the most prominent, constitutional rights are seen as more important than international human rights and we use similar language, don't we, that rights are inalienable?

Claudia Flores: 

Yeah, they're inalienable, unless you go to prison or you lose your lawful immigration status, in which case you lose some pretty important rights. I guess what John is saying is that the embodiment of rights in a country's constitution may provide similar rights to those we consider human rights, but those two ideas and sources do not provide the same guarantees or the same protections and they certainly don't provide those protections to the same group of people. Human versus citizen is a very big difference and countries will always give rights to their own first. And in a way, you could argue that that makes sense. Countries might have different levels of resources, priorities, capacities, but a human right captures this baseline value of protection that the state cannot derogate from, cannot depart from, but this leads us to an ever present question with any assertion of universalism: what about cultural relativism?

Claudia Flores: 

Wouldn't the valued rights, the ones that are so important to us that they can't be traded way, be different if we were coming from a different culture?

Tom Ginsburg: 

How do people agree on what rights they have? We'll look at that after the break.

Claudia Flores: 

If you're getting a lot out of this podcast, there's another University of Chicago Podcast Network show you should check out, it's called Big Brains. Big Brains brings you the engaging stories behind pioneering research and pivotal breakthroughs reshaping our world. Change how you see the world and keep up with the latest academic thinking with Big Brains, part of the University of Chicago Podcast Network.

Tom Ginsburg: 

So Claudia, I mentioned at the beginning that I was in Libya in 2014. And actually, what happened there provides some really interesting insight into how people settle on the set of rights that they want protected. Muammar Qaddafi had been this nutty dictator and during his rule, things kept changing, there wasn't a lot of stability, but one thing that was constant is that Libya was cut off from the rest of the world. In 2011, of course, the Arab Spring erupted and Qaddafi was deposed and eventually killed and that meant that you had a process of trying to figure out what the basic institutions for the country should be, so the question here is how a country that's been isolated from the rest of the world for some time, how do they go about picking what rights they want protected?

Zaid Al-Ali: 

It's important to give people a voice, it's important to make people feel that they're involved.

Tom Ginsburg: 

We decided to speak with Zaid Al-Ali, who is a Senior Program Officer for an international organization called the International Institute for Democracy and Electoral Assistance or International IDEA. He has been following constitution-building in the Arab Spring for quite some time, he's probably the world's leading expert on it and he's been involved in the process in many countries, including Libya.

Zaid Al-Ali: 

Libya prior to 2011 was a very wealthy country and had a very generous social structure and socioeconomic basis for the country, so Libyans were very used to having very generous economic rights. That meant free healthcare, that was certainly something that the Libyans got used to prior 2011 and expect it to continue. Education is obviously another one as well. That was also the case in Libya as well, free access to education. Because they already had socioeconomic rights, but they didn't have adequate protections for civil and political rights, it was very important for them to have access to those things. And the main rights that we're talking there are basically the ones that you would expect to hear, which is speech, association, assembly and due process.

Tom Ginsburg: 

In most of the rest of the world, these basic entitlements to health, food, housing, sometimes even water are prioritized. As the saying goes, who cares about voting when you're starving to death? But beyond this, Libyans really did want civil and political rights because they had never enjoyed them. Interestingly, Libyans who have a culture with a really old history, very different from that of Europe or North America, ultimately settled for the most part on many of the same rights you see in western constitutions and those found in other parts of the world. Now, in the Libyan case, the commonality of priorities actually emerged from a bottom up process of consultation and this is something that we now see around the world when new constitutions are made, a process of asking the local population what their priorities are, what they want to see in their fundamental law?

Zaid Al-Ali: 

Almost everywhere around the world when you do consultations and you ask people, laymen, dentists or engineers or journalists and laborers or train drivers or something, conductors, if you ask them what it is that they want in terms of rights, protections in their constitutions, they will almost always say the same thing. There is no real surprises, it's almost always civil, political rights, socioeconomic rights, access to healthcare, access to education, their freedom of speech. There are very, very few surprises and that's actually reassuring because people are the same. Everywhere you go, people want a decent life and a decent life for them means freedom of speech, healthcare, education, that sort of thing and that's a good thing.

Zaid Al-Ali: 

The only partial exception to that is on occasion, depending on particular circumstances, you may be negatively surprised because some people may say, "Actually, we don't want gender rights. We don't want women to be free," for example. That can happen and certainly that can happen in a country like Libya. That can happen.

Claudia Flores: 

So we have global agreement, except when it comes to women's rights. We'll have to explore that in upcoming episodes. But on a micro level, it is easy to see that everyone wants the same basic things: autonomy, safety, the possibility of pursuing things that make them happy. And we do see a convergence on rights such as free speech and increasingly on the right to health care and education. Alright. So what does Zaid think about where these convergences come from?

Zaid Al-Ali: 

There's certainly the fact that people have come to expect certain things, right? They know how people live in other parts of the world and they expect that in their national situation and their home countries, that they should be allowed to live according to those same standards. Now, in a typical, and Tom will tell you this too, in a typical session with constitutional drafters when you're talking about constitutions, you'll have references to national legal authorities and then you have references to South Africa, Canada, Germany, to Italy, lots of countries.

Claudia Flores: 

Zaid, what's the role of the international human rights legal system? Americans tend to sort of separate out the rights that they see in the American constitution and what they see in international human rights treaties. But if we look at modern constitutions, you actually see a lot of the language in international human rights treaties reflected in domestic constitutions, especially those that have been written in the last decade or so. So what's the role that they play and how are they dealt with in particular in the context of nationalism and cultural relativism? How do these processes go about using the provisions that are in those treaties?

Zaid Al-Ali: 

Well, they play a very big role, there's no question. It's like for countries like Libya that haven't had the benefit of a strong rule of law, haven't had the benefit of stability and very strong judicial and legal traditions, they don't have a lot to fall back on in terms of their own national traditions. It's not that they have a total absence of legal culture in their modern history, but there isn't a huge amount in comparison to what might exist in the United States and elsewhere. So in that type of context, it's very natural for people to turn to international agreements, international standards and conventions. What will happen typically in a country like Libya, in a country like Yemen, in a country like Tunisia, is that people, as they're drafting, as they’re negotiating, as they’re communicating with drafters and negotiators, is that they'll bring up the texts of the international agreements and international standards and they'll put them on the table, they'll put them on a screen and they'll argue in favor of putting in specific wording from these international agreements into their national constitutions, into the drafts of the constitutions.

Zaid Al-Ali: 

When drafts start emerging and start circulating and are being produced, often what people will do is that they'll compare them with international standards, as well international norms, international conventions as well and what they'll do is that they'll look to see if there's wording that's missing and will use that as a means, use the fact that they exist internationally as a means to try to encourage the national drafters to put them in as well.

Tom Ginsburg: 

In some of my research at the Comparative Constitutions Project, we found that international treaties are a really important force for helping countries to converge on the set of rights that they include in national constitutions. If a right is in the Universal Declaration of Human Rights, it's much more likely to be included in subsequent national constitutions.

Claudia Flores: 

And it surprises people how much of a role treaties play when countries are drafting new constitutions. I've served as an adviser to various countries on their constitutional drafting process on the issue of women's rights and the first thing I've been asked to do in addition to looking at neighboring country's constitutions is to look at treaties. There, the right is expressed and it's an agreed upon expression. The countries have already agreed to uphold these principles so it gives advocates actually a source to claim this right and to argue that this right should be included in a new constitution. But it's not just that, treaties also give people a language to express a right. They might know that there's something they really, really want, but the treaty has expressed it in the form of a principle, which is really appropriate to constitution making. Here's a way that one of our students put it.

Speaker 24: 

I think human rights matter because they give people the language in order to advocate for themselves and how to hold those accountable that are creating obstacles for obtaining those rights.

Tom Ginsburg: 

That's exactly right. So Claudia, who should an individual turn to when they feel that one of their human rights has been violated? How should it be resolved and who's duty is it to resolve it?

Claudia Flores: 

So here we are at the "Ah, there's the rub moment." A right without a duty isn't much of a right. The government really has to be at the center of rights protection, but whether that's enough might depend on who violated the right. What if my rights were violated by another individual, a private citizen even or by a corporation? What if the corporation and the private citizen also have rights and what if I violated those rights? That sounds like a question for a lawyer.

Jamal Greene: 

Philosophers can debate what it means to hold a right, right, but once we're talking about someone who's armed and telling you, "This is what your right means or this is what it doesn't mean," well, then we have to think about rights not in terms of purely in moral terms or in philosophical terms, but in terms of how we organize state power.

Claudia Flores: 

That's Jamal Greene. He's a law professor at Columbia Law School and the author of How Rights Went Wrong: Why Our Obsession with Right is Tearing America Apart. Jamal's actually concerned that we've become too focused on rights in this country and that we're asserting our rights in a way that's harmful to American society.

Tom Ginsburg: 

Yeah and that's a really interesting perspective. Given that democracies have been so focused on granting and prioritizing rights, he says that the way we implement rights leaves something to be desired.

Jamal Greene: 

How do we think about rights in a context in which the state is going to be involved, either through judges deciding rights claims or through passing laws and we live in a society, a society where we have violent disagreements with one another and resolving disagreements through the exercise of state power is a very serious thing to do and you better be very sure that you're right when you do that. I don't think that we think about rights in ways that can or should be based on a certainty that we're right or at least when we get to that point, it should be based on some deliberation about what the stakes are of being wrong. If a legal decision maker comes to the view, a validly deputized and authorized legal decision maker comes to the view that someone's really being oppressed, someone's not able to participate in civil society or their liberty is being suppressed for no reason or no good reason, well that might be a reason to bring the state in.

Claudia Flores: 

So according to Jamal, the court is not always the go-to place for rights enforcement. We should think of rights as a sociopolitical commitment that we enforce and protect in many ways, including social debate.

Tom Ginsburg: 

Right, and the American preoccupation with judges resolving conflict more generally in this country has been the subject of a lot of both criticism and admiration. Until very recently, relatively few countries had courts as powerful as ours, but many still manage to protect rights through legislation, through regulation, through social programs. We tend to focus much more on the courts as being the primary instrument of rights protection. Jamal thinks this conflictual zero sum approach to rights is particularly harmful.

Jamal Greene: 

If I say the reason you win this dispute is because the constitution accepts your right and doesn't accept the rights of the person on the other side of the dispute, well those are very high stakes for a rights dispute, to say but this constitution that's supposed to be the constitution for all of us accepts the rights of the rejected application in an affirmation action case, it doesn't recognize the rights of people not to be victims of structural inequality or it accepts the rights of a woman to autonomy in reproductive choice, it just doesn't recognize, doesn't care about the value of fetal life. It's not that they lose this case, it's just like that claim is not even a claim. Or you could say the same about religious freedom. Those are very polarizing terms in which to talk about rights conflict.

Jamal Greene: 

What we end up doing is handing those conflicts to judges and then saying, "Judges, you decide." A judge decides in ways that assign constitutional value to one side or the other. What's the incentive for political actors in that situation, for the rest of us of we think that's the way we decide rights claims? Well, I guess we better make sure the judges are part of our tribe and not the other one's tribe.

Claudia Flores: 

I think the first important point is that Jamal thinks that by leaving interpretation of rights to the judiciary, to the courts, we're sort of relieving our political institutions from setting priorities and making commitments.

Tom Ginsburg: 

Right and this is a problem. It lets the government institutions off the hook if they can just say, "Rights, that's not our job, that's the job of the courts." When we think of many of the interests that are students named as rights, courts aren't particularly well situated to protect them. You can't really fulfill the right to healthcare or education with a court alone, right? You need taxes. You need buildings. You need doctors. You need teachers.

Claudia Flores: 

Jamal thinks courts are best suited to making very fact specific determinations about rights. In many cases, balancing competing rights rather than making these sweeping declarations and setting definitions of what our rights are. He thinks that is for public conversation.

Jamal Greene: 

One example that I like to use, Citizens United, like lots of rights cases, is a case about rights on more than one side of a dispute where you've got First Amendment rights on one side, the rights of Citizens United and then on the other side, you could describe it as a right of political participation, of broadly equal access to the political process. Now, if you ask me, you've got to choose between First Amendment rights of corporations and the right to legislate for political equality of citizens on the other. I'm a left of center person, so I'm going to pick the equality rights over the free speech rights. I think that's the way you've got to frame the dispute. I'm going to go out and protest Citizens United and my President Obama is going to go out and say bad things about it at the State of the Union address. Someone on the other side is going to shout something at him from the from the peanut gallery.

Jamal Greene: 

And suddenly, this is just like a dispute between people who believe in liberty and people who believe in equality, that those are... Those kinds of stakes are just an existential soul of the nation kind of dispute, but what if we start asking some other questions about Citizens United? Like what kind of corporation is this? Is this a closely held corporation? Is it traded on the public stock exchange? Is it an ideological corporation? Does it sell widgets or does it sell speech? What is it trying to produce? Is it a commercial ad that, at least back in the early 2000s, would have involved a captive audience or is this someone selling video on demand, which is what Citizens United was doing? What is the difference between having to use your corporate treasury funds... be using your corporate treasury funds to fund your political speech versus using a separate political action committee, which is what the law said you had to do?

Jamal Greene: 

Is that a burden? Is that a big burden? A little burden? None of those questions are answered in Citizens United. But if you started answering those questions like, I the center person and some right of center person who might think that, "Well, I don't know if General Motors should have the unlimited right to spend whatever they want on campaigns, but Citizens United putting out a video on demand thing about Hillary Clinton, who's running in this election, seems like core political speech. I think we maybe can agree on that." Right. So why is the case about liberty and equality and not about those things?

Tom Ginsburg: 

He really emphasizes how American courts currently see their job as defining rights in kind of a binary way. You're either within the bounds of the right, in which case you get everything, or you're outside, in which case you get nothing. No real consideration of the actual underlying social interests at stake, but in practice what we see in the real world is these interests clashing. And then rather than negotiating conflict among these different interests, the dispute escalates to being about rights, in which case the answer is all or nothing, because when it comes to rights, there's this basic, non-negotiable position. If I have a right to something, I get it, 100 percent.

Claudia Flores: 

So Jamal, are you suggesting that in resolving a conflict of rights that you sort of put the question of liberty and equality aside and really try to focus on the facts of the situation or are you saying that considering rights requires a more nuanced assessment on the facts in front of you and that courts should really stay away from focusing on these grandiose principles?

Jamal Greene: 

Well, I think it's both those things. The first thing you said is, I think, a more precise formulation, which is in most disputes in the modern world, in a pluralistic society, are not about whether you believe in liberty or whether you believe in equality, most of us believe in both those things, it's about how you apply them to some particular set of facts and the way in which we have evolved abstracts away from that particular set of facts to try to get back to the threshold questions of liberty versus equality or something like that. Now, there are situations where that might well be the case, right. So if the government passes the Sedition Act and says, "If you say bad things about the government, we're going to put you in prison," yeah, liberty might very well be at stake in an ultimate center of a Jim Crow law where we just don't like certain kinds of people participating fully in civil society.

Jamal Greene: 

But to take that same principle, so in the Sedition Act case, to say, "Well, since we believe that you shouldn't be able to pass the Sedition Act," that the thing to take away from that is that any time the government regulates speech this high principle is at stake is really problematic right? So instead of putting someone in jail for opposing the government, a university doesn't want a white supremacist to give a speech in their public auditorium, to act as if those are remotely the same situation because they both involve speech is a category mistake.

Claudia Flores: 

I asked him directly if he thought this was an American problem, that our courts and our society are really just thinking wrongly about rights.

Jamal Greene: 

How much of what courts do influences someone saying, "I've got a right to order my taco without a mask on?" Where does that come from? What do you do with that kind of polarized society? What does politics look like within that society? If you have available to you this kind of legalized structure for talking about our disagreements and you're a polarized society, you're going to use it right up. Let's say our court system were one that just was just like mediators, just took you in a room with the person you disagreed with and try to figure out, that's sort of less useful if you're super polarized and you want to you want to trump over the other person. The court's just going to make you work it out. There's not a lot of reason to go to the court for that. But if the court's going to say, "No, no, no, one of you is totally right and gets to hold that over the other person," well, it's really useful in a polarized society.

Tom Ginsburg: 

We Americans definitely take a court centered approach to governance and we want the court to be like a parent, to tell us who wins and who loses, which is ironic because we also kind of distrust state power and yet we look to the courts, which after all are an arm of the state, to protect us. Courts have, for the most part, seen their role that way, but that may weirdly lead to a kind of oversupply of rights and an under supply of compromise and it may weakened our actual conception of rights and pushed it all into a big puddle of zero sum interests. A lot of the things we're going to be talking about in this podcast, guns, the environment, speech, these are things which involve complex policy choices, ones that most other countries don't let the courts decide all on their own. In our country, the view of a small group of educated lawyers who went to elite law schools end up determining who has what.

Tom Ginsburg: 

Anthony Kennedy single handedly gave us marriage equality. George W. Bush, unrestricted corporate contributions to political campaigns and the end of the juvenile death penalty. You might like some of these things and not like others, but it's hard to see why our rights should turn on the views of a single individual rather than be part of a broader conversation that we all engage in. What do you think, Claudia?

Claudia Flores: 

I think this is a consistent theme whenever you talk to experts on this issue, that rights have to live in the polis, people in society making these determinations, they can't be left to judges and specialists. These intuitions are just not well suited to generate meaning around rights and to tell us what we value. The work that has to be done is of the people. And when I say people, it can be people within a country if we're talking about a constitution or people throughout the world if we're talking about human rights. For rights to really be alive, for them to exist and to go from just an idea to a lived reality, they have to be a standard basic entitlement that everybody understands.

Claudia Flores: 

This entitlement is sometimes set against other entitlements and is sometimes negotiated, but it's never really traded and never abandoned. Here's John Tasioulas weighing back in.

John Tasioulas: 

I think the way forward really for human rights is to move away from this thought that they're radically anti-democratic, that they're radically counter majoritarian, that they're radically the possession of an elite of experts. On the contrary, I think the way to save human rights is actually to return them to the community, the kind of community that can actually sustain them. Because at the end of the day, I have a slight skepticism about law in the way that the realists did. There's law in the books, but what's the reality that that law in the books actually get adhered to and especially in a world where it's increasingly difficult for people to access legal justice.

John Tasioulas: 

So yes, the law is going to play an important role, but I think the far more important role is going to be played by a genuine communal buy in to human rights. I think one thing that can help secure that is if human rights are seen as part of the ordinary discussion of politics. Not that politics is about me pursuing my own self-interests and you pursuing your self interest. Well, but then on top of that there are some judges who make sure that certain minimum requirements are adhered to. No, it should be the case that politics is about the common good and what could be a more important feature of the common good than human rights?

Claudia Flores: 

Okay Tom, so here our episode ends and our season's discussion begins. What are rights? How do I identify them? How do we enforce them and implement them? What happens when they conflict? Are you ready to tackle this?

Tom Ginsburg: 

I am. For now, let's give the last word to one of our very wise students.

Speaker 27: 

I would say if human rights and the inherent dignity of all people doesn't matter, then nothing else matters. It's the foundation for which all of society is ordered and without them you can't have a flourishing, healthy society, which is what we all want.

Claudia Flores: 

Tom, I've got to say I'm feeling pretty entitled.

Tom Ginsburg: 

So am I.

Claudia Flores: 

I'm Claudia Flores.

Tom Ginsburg: 

And I'm Tom Ginsburg.

Claudia Flores: 

And you've been listening to Entitled, a podcast about why rights matter and what's the matter with rights. Entitled is a production of the University of Chicago Law School through the University of Chicago Podcast Network. This episode was written by us, produced by Alyssa Edes and edited by Matt Hodapp. Chelsea Kehrer, Hannah Abrahams and Simone Gewirth contributed to this episode. Thanks for listening and we'll catch you next time.