The Availability of Law Redux: The Correlation of Rights and Duties

Insofar as the human individual is social in nature, to each per- son's duty there corresponds another's right. Perhaps even more profound is the view that there are only rights in the first instance, that every individual has claims-those of human beings in general and those arising from their special situations-which as such become duties for the other. But since everyone who is thus entitled is also somehow obligated, a network of rights and duties back and forth arises in which it is the right that is the primary, leading factor; duty is admittedly only its unavoidable correlate situated in the same activity. (Georg Simmel [1908] 2009: 409)During the first 10 days of January 2014, the front page of the New York Times usually carried at least one article referring to rights. The topics ranged from the right to own guns, to perform abor- tions, of gay couples to marry, of patients' to end medical treatment, of adults brought illegally to the United States as children to become lawyers, as well as the due process rights of prostitutes in China, political protestors in Cambodia, and religious groups in Egypt. Despite 50 years of empirical studies documenting the inde- terminacy of rights, mapping the gap between judicially sanctioned rights and their inconsistent protection, and offering penetrating critique of rights as the ground of a just social order, rights talk flourishes nationally and globally. Amidst this exuberant celebra- tion of rights, there is considerably less attention to the fact that rights always create duties, as the epigraph from Georg Simmel claims. We value rights as restraints on power, especially the power of the state, but rights simultaneously enable and require the state to exercise its power in protecting rights.1 Every protected right, alongside myriad sanctions and legal procedures promulgated to protect some interest or proscribe some action contributes to "a persistent surplus of enforcement capacity," a bounty of govern- ment authority that ultimately enables routine law enforcement (Silbey & Bittner 1982). The duty to enforce that grounds every legally sanctioned right can also be the basis of unreasonable action, action that has disproportionate ideological force when undertaken in the cause of vindicating rights.In his 2013 presidential address to the Law & Society Associa- tion, Michael McCann spoke about what he called, "The Unbear- able Lightness of Rights: On Sociolegal Inquiry in the Global Era." A jazz musician himself, McCann offered a riff-a distinct variation and outpouring in response to a (musical) phrase-on the title of Milan Kundera's 1984 novel, The Unbearable Lightness of Being.In his own words, McCann draws on the leitmotif of lightness and weight thematically organizing Kundera's novel to catalog some of the paradoxes of rights talk and its dissemination globally. Although Kundera uses lightness to refer to the singular and ephemeral quality of any human life-that we each live only once and never again, McCann seems to invert Kundera, referring to the lightness of rights in terms of their ubiquity, multiplicity, and complexity. It is not clear why ubiquity, multiplicity and complexity is interpreted as lightness, when we might as easily regard the ubiquity, multiplic- ity and complexity-the overwhelming presence-of rights as weighty, but McCann takes a different tack. Kundera's novel also focuses lightness on love and sex, unpredictable, haphazard and often fleeting events, and here McCann picks up the theme to reference the indeterminacy of rights, the inability to hold, contain, or know that rights will in fact shape particular human events or experiences. He counterposes the lightness to the heaviness of rights, the conventions and routines through which rights become duties embedded in institutionalized social order. "Rights construc- tions," abundant, multiplex and paradoxical as they are, "ensure order less because they dupe or brainwash ordinary people," McCann claims, "than because they are harnessed to constellations of group power, institutional arrangements, and state force," that more often than not support existing, unequal, often unjust distri- butions of advantage and opportunity. …