Rights as Enforceable Claims Author(s): Susan James Source: Proceedings of the Aristotelian Society, New Series, Vol.

103 (2003), pp. 133-147 Published by: Blackwell Publishing on behalf of The Aristotelian Society Stable URL: http://www.jstor.org/stable/4545389 . Accessed: 23/10/2011 12:03
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VII* RIGHTS AS ENFORCEABLECLAIMS' by Susan James

Unless rightsare claimable,it is sometimesargued,they are no more than rhetorical gestures which mock the poor and needy. But what makes a right claimable?If rights are to avoid the charge of emptiness, I argue, they must be effectively enforceable. But what does this involve? I identify three conditions of enforceability,and four sets of broader circumstancesin which these conditions can be met. I discuss the implicationsof this analysis of rights for multiculturalsocieties, and conclude that the conditions in which appeals to rights are useful are more limited than many contemporarytheoristsallow.
ABSTRACT

In

a culturewherethe air echoeswith demandsfor rights,a

number of philosophers have begun to warn against the dangers of profligacy. Rights claims, they have suggested, are potentially powerful tools of reform, but can be damaged if they are used carelessly.When governmentsor internationalorganisations allocate rights of education, free speech or holidays to people who have no likelihood of gaining these things, their efforts are merely rhetoricalgestureswhich display a lack of political and philosophical understanding.Still worse, such empty beneficence is insulting to disadvantaged individuals or communities, and is 'a bitter mockery to the poor and needy'.2This powerful critique of contemporary mores is grounded on an underlyingconviction that rights are best understoodas practical entitlements which make a difference to the lives of those who hold them. To possess a right one must be able to claim it (for example by successfully demanding that other agents fulfil correlative obligations, or by simply taking advantage of the fact that they are already doing so) or have it claimed in one's name (for example by one's representatives). However, it is not immediatelyclear what this condition amounts to or how widely it applies. It is generally agreed that a large class of legal rights
1. I am grateful to Anca Gheaus and Al Martinich for helpful discussions of this topic, and to Quentin Skinner for comments on an earlier version of the paper. 2. Onora O'Neill, Towards Justice and Virtue. A ConstructiveAccount of Practical Reasoning (Cambridge: Cambridge University Press, 1996), p. 133. *Meeting of the Aristotelian Society, held in Senate House, University of London, on Monday, 27th January, 2003 at 4.15 p.m.

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dependson juridicaland social institutionswhich create and allocate obligations, and that when these institutionswork efficiently and reliably we are able to claim our rights with relative ease, even if the proceduresfor doing so are lengthy and complicated. When institutions are precarious, inefficient or corrupt, our ability to claim our rights is less secure. But what does it take to extinguish rights altogether?When do they become unclaimable and thus no rights at all? Onora O'Neill suggests that a right is only claimablewhen we can identify agents who are under an obligation to ensure that the entitlementis met. 'Unless obligation-holdersare identifiable by right-holders,claims to have rights amount only to rhetoric: nothing can be claimed, waived or enforced if it is indeterminate where the claim should be lodged, for whom it may be waived or on whom it could be enforced.' If we accept this proposal, a 3 right cannot be claimed, and therefore does not exist, when we are unable to find anyone on whom to pin the correlative obligations. But what does this condition involve? O'Neill distinguishes between special rights which are held against particular agents, and universalliberty rights which are held against everyone. Special rights can only be claimed if particular,identifiable agents are obliged to realise the right in question. For example, one only has a right to health care if there are nurses, doctors, midwives and so on, who are obliged to provide one with treatment or advice; and in order for individuals to be under such obligations there must in turn be institutions through which duties are distributed and enforced. Special rights therefore depend on institutionsin order to be claimable.By contrast, universal liberty rights which are held against everyone could in principle be claimed even if no institutions existed. The mere knowledge that everyone has an obligation to respect my right to have unrestricted access to public space, for example, is enough to allow me to identify the agents against whom my right is held. And that in turn is enough to enable me to claim my right.4 This analysis is designed to allow for a distinction between claiming and enforcing rights. It is possible to have a claim and
3. O'Neill, p. 129. 4. O'Neill, p. 132.

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thus a right to free access or health care without being able to enforce it. Since the right depends on the existence of identifiable agents who are under an obligation to meet it, it is claimable as long as we can say who is at fault when it is not delivered, and who would be at fault if it were not delivered;but is not necessary that anyone should be able to make these agents live up to their obligations. To put the point more approximately, a right is claimable when there is someone to complain to. In addition, O'Neill offers a way to reconcilethe requirement that rightsmust be claimablewith the fact that some rights are harderto exercise than others. For example, it is relatively difficult to exercise a right to sue someone for libel, and relatively easy to exercise a right to breathemoderatelyclean air in London. In fact the latter right is so easy for Londoners to exercise that the problem is to see how they can avoid doing so. One might be inclined to say that the first type of right is claimable while the second is not. According to O'Neill, however, both types of right are claimable as long as there are identifiable agents who could fail to meet their obligation to guaranteethe rights in question. Claimability, in her sense of the term, does not requirethat an agent who holds a right should possess the power to choose whether or not to exercise it. It just gives them or their representativesthe more limited power to protest when their rights are violated, and to this extent they exercisecontrol over their rights. It is therefore not a requirementof this account that anyone should possess the power to guaranteethat agents fulfil the obligations from which rights flow. Nor does it require that these agents should have the power to meet their obligations. In consequence, the condition that rights must be claimable is relatively weak. It allows, for example,that a welfareright to medicaltreatment is claimable as long as legal and social institutions distribute duties to nurses, doctors and so on, even if medical staff illegally refuse to treat certain sectors of the population, or the drugs needed for treatmentare permanentlyunavailable. In the case of a universalliberty right such as a right of access to public space, an agent can claim it in circumstanceswhere other people are barring her way, where she is not powerful enough to defy them, and where there is no relevantinstitution to appeal to. O'Neill's analysis of what it takes to make a right claimable sits strangelywith her declarationthat rights must be more than

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empty gesturesthat mock the poor and needy. Is it not a mockery to argue that rights are claimable in circumstanceswhere the agents responsiblefor guaranteeingthem lack the power or will to fulfil their obligations?Is it not empty rhetoricto offer people rights that are claimable but unenforceable,and thus in practice unobtainable?To put the point differently,why is it any better to be offered a right that is claimable but unenforceablethan to be offered a right that is not even claimable?O'Neill replies that claimabilityguaranteesthe existence of a minimal procedurefor demanding the enforcement of a right. In some circumstances, this is indeed an advantage. By cajoling, protesting or appealing to a higher authority it may be possible to bring it about that the obligations on which a right depends are fulfilled. In other circumstances,however, the fact that identifiableagents have a responsibility to guarantee one's right may be no help at all. Where the state is bankrupt, the police force corrupt, the judiciary too cowed to act or the pharmacyempty, claimability is not a route to enforceabilityand is for practicalpurposes useless. In situations like these it will be little short of insulting to reassureagents that their rights are claimable. To satisfy O'Neill's own sense of what such talk ought to be able to achieve, we thereforeneed a strongernotion of claimability,and a more exacting account of what it takes to possess a right. This conclusion has recently been taken up by Raymond Geuss, who agrees that the existence of a right depends on the existence of a specifiablemechanism for enforcing it, but adds that this must be 'backed up by an effective method of implementation'.'Since effectivenesscomes in degrees, this condition is not clear-cut; but it nevertheless implies-and here O'Neill and Geuss diverge-that when the mechanism for enforcing the obligations that correlate with a right cannot be effectively implemented, no right exists. This more stringent requirementserves to exclude some of the rights that O'Neill's condition of claimability recognises, thereby blocking off the unwelcome conclusion that there can be rights which are from a practical point of view useless to those who hold them. First of all, Geuss's account limits the scope of welfare rights. If the
5. Raymond Geuss, History and Illusion in Politics (Cambridge: Cambridge University Press, 2001), p. 146.

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mechanismfor supplying a given right must be an effective one, the existenceof officialswho are formallyresponsiblefor providing medical treatment,but are also intransigentor impotent, will not be enough to generate a right. Some furthercondition must be met, such as that these officials can be induced to co-operate, or that they command the necessary resources to do their job. Secondly, Geuss's account has an effect on the scope of universal liberty rights. Whereas O'Neill holds that these can exist in the absenceof institutions,his view impliesthat they are only created when and where effective institutionalmechanismsfor enforcing them are put in place. Finally, going even further,Geuss is sceptical about the existence of universalrights of any kind. They will depend on institutions capable of effectively enforcing some claim the whole world over, and such claims are at best rare, if they exist at all. At the heart of this position lies a plea for conceptual and ontological clarity. If rights are effectively enforceable claims, Geuss argues, they must be claims against some individual or collective agent who is capable of effectively enforcing them. Unless we can identify such an agent, a claim to a right will be vacuous, in the sense that no effectively enforceable obligations underpin it. In Geuss's view, the importance of this condition often fails to be recognised.For instance, when an international conferenceof physiciansdeclaresa universalright to health care, or a gay activist announces a special right to same-sexmarriage, the language of claims is misleadingly employed to articulate what are in effect moral beliefs. What the conference and the activist are really doing, Geuss proposes, is making statements about benefits that they believe it ought to be possible to claim, while acknowledging that these benefits are currently unclaimable and unenforceable.However, we cannot create claims simply by naming them, and the fact that someone believes that a state of affairs is morally valuable does not bear on its standing as a right. Such a sharp division between rights and moral judgements may seem unduly strict. Why, one might wonder, should we not continue to appeal to moral rights in order to draw attention to injustices,and to identify claims to which we believe people are morally entitled, regardlessof their circumstances? long as we As are clear about the differencebetween beliefs and claims, Geuss

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does not deny that some such strategy may be fruitful. It may help us to voice our moral aspirationsand devise ways of realising them. Furthermore, his position allows that the rights guaranteedby a society's institutionsmay reflect,and alter with, the moral beliefs of its most powerful members. Since moral judgements about the claims that people ought to be able to enforce effectivelyprovidejustificationsof existing rights, as well as reasons for reform, the two are perhaps more interdependent than at first appears. A furtherreason for not pressingthe distinctionbetweenrights that rights and moral beliefs too hard arisesfrom the requirement should be effectivelyenforceable.Before one can apply this condition, one must know how to distinguish a right that is effectively enforceable from one that it is not, and this process may itself be shaped by our moral beliefs. If, for instance, it were to become extremelydifficultto exercisethe right to walk the streets of central London during the middle of the day, and all attempts to get the right enforced met with failure, we might regretfully conclude that, since there was no longer an effective mechanism for enforcingit, the right had ceased to exist. The fact that some of us could still walk around if we took very special precautions, and the fact that we might continue to appeal to various authorities to restoreone of our ancient liberties,would arguablynot be enough to alter our conviction that the right had disappeared. In this part of the world, a right to walk the streets during the day is a right to do so easily. There are other cases, however, where we accept that claiming a right involves a great expenditure of effort, and where we do not regard this obstacle as enough to obliterate the right. We may even believe that some rights shouldbe difficult to claim, and thus believe that they are effectively enforceable even when they involve complex procedures that are not ordinarilyaccessible. These examples are designed to show that our judgements as to whetherthere are effective institutionalproceduresfor enforcing a right are partly shaped by our moral beliefs about the urgency of the right in question. If we believe that the ability to get around London on foot during the day is a vital freedom, either because it has a value of its own or because it is a means of realising other values that we rate highly, we are likely to believe that the claim to walk around London is only effectively

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enforceable, and thus only a right, if it can be easily realised. However, if for some reason we came to think that the ability to walk around London was only a minor benefit, we might well develop a less demanding conception of what was needed to make it a right. When we assess whether or not a claim is effectively enforceable,we measureit in the light of our moral beliefs. They thereforeenter into our interpretationof the condition that a right must be effectively enforceable, and thus into debates about what it takes to realise a particular right. For example, the campaign to 'take back the night' challenges an established understandingof what is involved in realising a right to walk safely in dark streets,by defendingthe moraljudgementthat this claim ought to be effectively enforced on behalf of women as much as men. By exploring the view that rights depend on the existence of specifiablemechanismsfor enforcing them, backed up by effective methods of implementation, we have perhaps refined our appreciationof their character.However, we have not yet examined this requirement closely. What does it presuppose,and what would it take to satisfy it? A first and obvious point is that the obligations from which rights flow only emerge within elaborate and interlocking sets of institutions. If even a relatively simple practice such as promising is to generate rights, it needs to be taught, whether in families or schools; reinforced, for instance through codes of manners, sermons or novels; and sanctioned, whetherthrough the loss of friends or business associates, or the weight of public disapproval. A more formally-regulatedright, such as a right to health care, may flow from the obligations of governmentministries,local health authorities,private insurance companies, hospital trusts, doctors' surgeries, medical schools, firms of legal experts, law courts, and so on. These institutions (which themselvesdepend on establishedrights-generating practices such as contract or representation, as well as on more specificrules and guidelines)co-operate to produce and sanction the patterns of obligation that constitute particularclusters of rights. Although the rights that a society can provide will vary with the nature and design of its institutions, some such network will be a precondition of any enforceablerights at all. A second condition stems from the fact that institutionalnetwork have to be brought alive, so to speak, by individualagents

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who take on various sets of responsibilities,and in doing so contribute to the creation of rights. To exercise their powers effectively, these agents must understandwhat they are dbliged to do and must know how to carryout their obligations. Satisfyingthis requirementis partly a matter of designing effective procedures and sanctions, skills which can be fostered or underminedfrom within institutionsas well as from without. For instance, a health authority may or may not take the trouble to train and support its managers adequately, and its efforts may be helped or hindered by governmentspending policy or by changes in the law. However, institutional design is not the whole story, since the effectiveness of an institution also depends on the attitudes of the agents who contribute to it. In many situations, effective agents must be disposed, for example, to attend to the demands and abilities of people whose claims they are responsible for realising,to interprettheir claims with at least some imagination, to respond to them conscientiously, and to assess them fairly. This range of attributescannot be taken for grantedand presupposes, among other things, the prevalence of certain emotional dispositions, such as a reasonable level of benevolence towards people who make claims on one, respect for the sanctions attached to incompetence,sufficientdeterminationto enable one to do one's job, reasonable confidence in one's ability to do it successfully,enough enthusiasmto apply one's intelligenceto it, and some satisfaction in one's successes. These traits, too, can be fostered by diversemeans (whetherthrough training,income, esteem or gratitude) some of which lie within the power of an institution and some of which do not. Equally, they can be underminedby externalfactors, or by the ethos of an institution itself. (Who has not encountered a surly and obstructive post office, or an off-hand and uncooperativebank?) The creation of institutions that work well enough to implementand enforce the obligations from which rights flow is therefore an elaborate and continuous process which must continually adapt to changing circumstances; without it, rights understood as effectively enforceable claims do not exist. But even this is not enough, because in cases where agents are expected to play an active role in claiming their rights, we also need to consider what makes this possible. Like its predecessors, this third condition is complicated. To exercise a right to sue

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for damages, for example, an agent will need access to money, information about proceduresand entitlements, sufficient authority to lodge and negotiate her claim, and access to specialists of various kinds. As before, these resources presuppose institutions (for instance firmsof solicitors,courts of law or libraries) and certain emotional dispositions on the part of the agent (for instance self-confidence, determination, indignation or solidarity). The existence of agents capable of exercisingtheir rights thus depends on a wide range of institutions and cultural practices. This tripartitedistinction between institutions, agents who fulfil obligations, and agents who claim rights, is a rough and ready one which could be further subdivided. Nevertheless, it serves to concentrate attention on the complex conditions needed to underpinrights,when these are understoodas effectivelyenforceable claims. Not only must all three elements be in place. They must also work together more or less harmoniouslyin order to avoid the many types of dislocation that can make it impossible to enforce claims effectively. This analysis of what a right requires departs from a standard view which locates the rights guaranteedby particularsocieties in legal institutions and refers to them as 'legal rights'. It is true that the rules, processes and sanctions of the law are often components of an enforceable right, and that legal institutions are often what we turn to in order to try to enforce a claim. When a tenant refuses to pay rent a landlord contacts her lawyer; when a person's house is burgledthey call the police. For some purposes, such as working out how to enforce a claim, it may be helpful to view a right through a narrow lens that focuses sharply on the sanctions by which it is upheld. In other contexts, however, it is more productive to conceive of rights in the broader fashion I have outlined, as constitutedby branchingand variablesets of conditions. By doing so, we can gain a fuller understandingof why it is that rights, as a means of realising people's moral aspirations and resolving their conflicts, work better in some circumstancesthan in others. Acknowledging the many and diverse conditions that are needed to create an effectivelyenforceableclaim allows us to see, first of all, why demands for new rights will not always provide a clear-cut or rapid route to the solution of social problems. In

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some circumstances,there are well-definedproceduresfor generating rights, which rely only on establishedinstitutions, attitudes and dispositions. A minor change in tax legislation, for example, may be implemented quickly and effectively by dedicated accountants and seasoned taxpayers,who know how to do such things and are committedto obeying the law. In other situations, however,.the preconditionsof a right may themselveshave to be created or altered before the right itself can emerge. Because, as we have already seen, these preconditionsare numerousand difficult to coordinate, it will be easier to generate new rights in circumstanceswhere they are already secure. But what circumstances are these? The level of coordination that the realisationof rights presupposes can usually be achieved only where there is an overarching and effective source of political authority,or a hierarchyof authorities with well-defined and accepted jurisdictions. When this condition is not met there may be areas where institutionsdo not operate effectively, and thus where fewer rights exist; or there may be competing authoritieswhose institutionsare liable to disrupt one another. This second state of affairs can occur within the boundariesof a state, for exampleduringa civil war, or internationally, as when memberstates of the EC refuseto implement the rights that it attempts to guarantee.Given this condition, it is hardly surprisingthat efforts to establish rights on an international scale are often relatively shaky, and that, as Hannah Arendt pointed out, people who cease to be citizens lose many valuable entitlements.6 A second feature of the circumstances in which rights can emerge derives from the requirementthat agents need to be able to enforce their rights effectively.In societies where some groups have little power and no one capable of representingthem, their ability to enforce their rights may be relativelylimited, and this in turn will affect the kinds of rights it is possible to create and sustain. For instance, it may often be impossible to generate rights that are held by all members of the society in question. Many universal claims are only effectively enforceable where power is distributedfairly evenly. Equally, it may be impossible to deliver a right to all the members of a certain group, even if one believes that this is morally required.
6. Hannah Arendt, The Origins of Totalitarianism(New York: Harcourt Brace Jovanovich, 1973), p. 296.

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Two further presuppositionslie behind the claim that rights depend on agents who fulfil their obligations in an effective fashion. One is that, unless these agents can command the relevant resources, they will be unable to carry out the duties that institutions place on them. The capacity of institutions to generate rightsthereforedependson the resourcesthey can musterand on how they are able to distributethem. The final presupposition derives from the fact that the willingnessof agents to contribute to the complex process of realising rights may be underminedif they are out of sympathy with the rights in question, or with some of the procedures,attitudes or dispositions on which these depend. People who do not share the values embodied in the obligations from which a right flows may drag their feet or actively resist, thus disruptingthe operation of mechanismsfor guaranteeing rights, and making new ones harder to devise. Although sanctions can be used to make them fulfil obligations of which they do not approve, or to which they are not committed, a right emergesmost easily in a climate whereit is commonly regarded as valuable and there is an adequate level of support for it. Where a society is sharplydivided on such an issue, rights are harderto create. These four presuppositions are individually and jointly demanding, and remind us that the circumstancesfor the creation of an extensive system of rights are culturallyand historically specific. When they are not satisfied, as often happens, claims purportingto be rightstend to become more or less empty gesturesand fail to deliverthe outcomes they formallyguarantee. The conditions on which effectively enforceable claims depend, together with the circumstancesin which these conditions can be met, limit our capacity to generate rights, and thus limit the extent to which we can solve our problems by creating rights to cope with them. The observation that moral divisions within a society can impede its ability to create rights has a significant bearing on debates about multiculturalism, and particularlyon a recent call by Susan Okin for the more effectiveprotection of young women who are members of cultural minorities living within liberal societies, yet who are subject to practices such as enforced marriage or disciplinaryviolence.7 Okinprotests that these practices
7. Susan Okin with respondents, Is Multiculturalism Bad for Women?Ed. Joshua Cohen, Matthew Howard and Martha C. Nussbaum (Princeton: Princeton University Press, 1999), pp. 9-24.

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violate civil and political rights which liberal societies extend to all citizens, and seems to take it for granted that young women in this position should be granteda right to protection. However, she does not consider the furtherquestion:what would it take to provide them with an effectively enforceable claim to be protected against the kinds of cultural practices she regards as oppressive? A first requirement,accordingto the schema I have set out, is that institutions should allocate, sustain and sanction the obligations out of which such a right emerges. The law must grant women protection from violence and sexual coercion, the police and other authoritiesmust play their part in enforcing the law, there must be refuges with a duty to give places to women in searchof protection, these women must be eligible for some form of financial support, and so on. A second requirement,and a particularlyimportantone if claimantsare inexperiencedand relatively powerless, is that agents should meet their obligations. When a society is morally and culturallyheterogeneous,this condition may be especially demanding. On the one hand, agents who are under a formal obligation to enforce a law may have their own reservationsabout it or be unwillingto credit the testimony of young women seeking protection. (Think, for example, of the unwillingnessof the police to intervenein cases of domestic violence.) On the other hand, a young woman's right to seek protection is partly created by a general obligation not to stand in her way, an obligation that falls on her family, friends and community as much as on anyone else. Where a community is convinced that the course of action to which a young woman objects is for her good, it may be unrealisticto suppose that its members will stand back while she tries to avoid it. Here, the obligations of officials outside the community to which she belongs may begin to weigh especiallyheavily. These agents may be called upon to enforce a young woman's claim in the face of opposition which strains their own loyalties and courage, and so renders her right more precarious. Finally, rights to protection can only be effectively enforced if the obligations we have just been considering are balanced by the ability of claimants to demand their rights. Young women would need to be aware of their rights, to have opportunitiesto claim them, and to have at least some idea of how to go about doing so.

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One can imagine a relativelyhomogeneous and isolated community, deeply committed to a practice which most other members of their society regard as oppressive, in which the chance of affordingits young women a right to protectionwould be slight. It would be extremely difficult to turn these young women into effective claimants, and to ensure that the obligations out of which their rights emerge were met. In such circumstances, the institutional apparatus of a right to protection might well amount to little more than a formal guaranteewhich could be claimed, if at all, at the exceptionallyhigh cost of losing one's membershipof the only community one had ever known. In general,however,multiculturalsocieties are more integrated than this imaginary example allows. Minority communities are themselvesinternallydivided over moral and culturalissues, and at least some of their membersmove back and forth between the community and other cultures surroundingit. In these circumstances, we can suppose, a young woman who protests against a particularpracticewill not be a lone voice. There will alreadybe what James Scott calls a hidden transcript-an account of the practice seen from the point of view of those who are oppressed by it-to help her articulateher plight.8In addition, some members of her own community may support her, and she may be able to turn to people outside for help. Her ability to claim a right of protection therefore looks a good deal more secure. Nevertheless, a lot depends on the balance of power within her community.If those who support and impose the contested practice have the power to coerce young women into conforming, and to impose heavy penalties on any who resist, there will still be no effectively enforceable claim to protection and thus no right to it. What would have to change in order for a right to emerge?If we assume that the powers and moral beliefs of the liberal majorityremain unaltered,the change would have to come from within the minority community. Perhaps a sufficientproportion of its members might stop regarding the contested practice as essential to the welfare or identity of its young female members, or of the group as a whole. Perhaps families whose daughters
8. James C. Scott, Domination ahd the Arts of Resistance (New Haven and London: Yale University Press, 1990), Ch. 2.

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resisted would no longer feel shame or a sense of failure, elders would no longer take their ability to enforce it as a decisivemark of their authority, and the community at large would no longer put pressureon women who decided to resist, or on those who sided with them. It is of course true that the experienceof life in a multiculturalsociety induces changes in all the cultural groups of which it is composed, and that sometimesa minoritymodifies its practices in ways that bring it closer to a dominant, liberal culture. When this happens, the project of extending highly valued civil, political or social rights to all the members of the minority becomes much easier to realise, and Okin's demand for a universalright to certain forms of protection can more readily be achieved.9 If, however, we face the fact that there can be deeply-entrenched and persistent moral and cultural clashes between-and also within-the constituent groups of a society, we shall have to acknowledgethat Okin's proposed solution may sometimesbe impossible to realise. A society may find itself in a position where it cannot extend what are regardedas basic rights to particulargroups of young women, or to other groups who occupy comparable positions. This may be because it cannot devise effective mechanismsto ensure that the young women are able to claim their rights, either by acting on their own behalf or by acting through representatives. Alternatively, it may be because a society cannot ensure that the obligations from which a right flows are effectively fulfilled so that claimants can gain what they are entitled to. Western democracies are inclined to think of themselves as par rights-creators excellence,as societies where the political and material circumstanceson which rights depend are present and in good working order. To some extent, this self-perceptionis justified. If, however, certain kinds of rights requirea comparatively even distributionof power, and a moderatelevel of moral consensus among the members of society, then the absence of these conditions will limit the rights that even such privileged polities can create. Okin's discussion of a situation where they do not obtain-where an uneven distribution of power and an absence of moral consensus stand in the way of universalliberty rights-unintentionally highlights the effect that this can have in
9. Cf. Joseph Raz, in Susan Okin with respondents, p. 97-99.

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societies that are otherwise skilled at sustaining and generating effectivelyenforceableclaims. One way to respond to these difficultiesis to beaver away at the creation of new attitudes, obligations and rights. This may not be a bad thing to do-it depends what rights one beavers away at. However, the danger of this course, exemplifiedby theorists who regardrights as narrowlylegal claims, is that one will fail to take account of all that the process involves, and only succeed in creating formal entitlements that are not effectively enforceable.One will then be exposed to the very objection from which we began-that rights should be more than mere statements of moral conviction. A differentresponse, and in my view a more constructive one, is to step back from the assumption that rights are a universalpanacea, able to cure a host of ills. By taking account of the types of circumstancesin which they can be realised, and working out how these bear on particularsituations and problems,we can gain a richerunderstandingof when it is fruitful to resort to rights, and when it is pointless to invoke them. Departmentof Philosophy BirkbeckCollege Malet Street London WCIE 7HX s.james@bbk.ac. uk