Oh, Reason Not the Need: Rights and Other Imperfect Alternatives for those without Voice

are increasingly losing their sense of urgent assertion, their implied imperative that the claims of the rights-holder take absolute or near-absolute priority over competing claims to the common pool of social resources. Whether or not this perspective has yet become a self-consciously held understanding of the meaning of rights, it is plausibly an interpretation of the practice of according recognition to rights. Rights have, particularly in the second half of the twentieth century, increasingly been invoked instrumentally, as a means to vaguely specified ends of "social change" or "transformative action" (Schlag 1996). The mechanism that dilutes the trumping quality of rights is particularly visible when research focuses on the social practices of implementing rights. For rights to mean anything in practice, they must be embodied in rules about who can claim them, when, and under what conditions. Once rules have been specified they must be administered. From a contextualized, empirical perspective, the administration of such rules becomes itself the embodiment of the extent of any rights. Rights, in practice, are legally protected entitlements, albeit ones that trump more weakly protected interests. Now the more that the circle of rights expands to include additional and greater categories of claimants, the more the practice of enforcing and recognizing such rights will require detailed rules to deal with conflicts and trade-offs between rights. And to the extent that each right exists only as the obverse aspect of the effectiveness of its implementing rules, it risks being subordinated to competing rights embedded in that web of rules and thereby collapsing into a mere interest. These observations describe a risk endemic to rights talk in general. But the risk is especially acute with regard to those who cannot voice their claims independently. As is obvious by now, such rights-holders are central to the wider implications of Silverstein's book. Since those who have no This content downloaded from 157.55.39.157 on Fri, 08 Jul 2016 05:01:08 UTC All use subject to http://about.jstor.org/terms 312 LAW AND SOCIAL INQUIRY effective voice need a spokesperson and translator, even more rules will be necessary to specify who exactly will speak for the rights-bearer, when, and under what circumstances. And where vulnerable beings are concerned, paucity of power, resources, and capacity exposes them to greater than usual dependence on the obverse aspect of regulation. The risk of their rights collapsing into utilitarian interests is proportionately higher than that of most rights-holders. In sum, the new risk is that contingent, contextual, flexible rights claims grounded on sentience risk collapsing into what is, in substance, no more than a claim for the adjustment of multiple and conflicting interests. From this viewpoint, the language of rights becomes a convenient political strategy but masks a more fundamental utilitarianism. This collapse into utilitarianism may run even deeper than a tendency that emerges only at the level of political practice. The dilution of rights talk may even seep to the level of principle. This is because of the move from rationality to sentience as the ground of rights. To reiterate briefly, Silverstein stresses the challenge to rights talk presented by the fact that sentience, or the capacity to suffer pain and enjoy pleasure, is the ground of claims for animal rights. Sentience, however, is the ground of classical utilitarian theory and the minimal basis not of rights but of interests. The experience of pain or pleasure forms the basis of interest articulation, but not the framework for a protected space of autonomy which society is expected to respect notwithstanding competing interest claims. The issue of trumping is difficult to avoid, and once again, urgency becomes critical. It is not obvious how, without more, sentience can found a claim to demand urgent and uncompromised attention from society. Can needs talk tell us what that more may be? VI. INCIPIENT UTILITARIANISM AND NEEDS TALK The question here is whether needs talk directs our attention to factors that might lessen this (new) risk of creeping utilitarianism. Nancy Fraser (1989) observes that needs claims are typically expressed in one of two major (though very different) contexts. In the first context, needs claims are articulated in an attempt to politicize and make visible previously invisible needs. In this context, urgency and refusal to compromise would seem to be more intense than where a new right is being claimed. Because needs talk depends for its urgency on a persuasive demonstration of sheer necessity, the making of new needs claims seems not to dilute the power of needs talk generally, but rather to override the power of previously articulated claims. The need of a freshly articulate group is not, like rights, generalizable by definition. It is specific and contingent, yet urgent. It would therefore seem a ripe resource for combating utilitarian dilution. This content downloaded from 157.55.39.157 on Fri, 08 Jul 2016 05:01:08 UTC All use subject to http://about.jstor.org/terms Those without Voice 313 But in the second context of needs articulation, the focal issue is the content of needs once their political status has been successfully secured (Fraser 1989, 305). And at this point, urgency gives way to compromise and trade-off as a central part of the process of satisfying needs. Indeed, compromise becomes itself an expertly administered necessity for managing needs. For the link between objective expertise and needs (see section IV) results in a series of procedures that redefine the politicized need "as the correlate of a bureaucratically administrable satisfaction" (Fraser 1989, 306). In order to become manageable, needs-once bureaucratized and administered-are redefined and often compromised by expert discourses, though the technocratic nature of this redefinition may often obscure the compromise. Thus at the particularized level of social practice, needs claims are subject to utilitarian trade-offs and nothing in their underlying conceptual grounding provides a bulwark against this process. The urgency of needs talk in the period of initial politicization is a contingent feature rather than an intrinsic aspect of needs talk. Indeed, needs even more than rights are grounded in sentience, in "physical/psychological individual processes" that mark the absence of "moral frames that stand outside pragmatism and utilitarianism" (Cobb 1997). Rights that trump provide one such moral frame, but as we have seen, once we begin with social practice (and assuming that we rule out transcendental foundationalism), it is not a sturdy frame. There is still no sense of what, in a framework of sentience-based rights or needs, would ground the urgency of a claim. The important question, from a contextual perspective, is what sort of considerations does one language select as most relevant to the urgency of a claim? For example, in a recent article on whaling rights, Scheiber (1998) argues that indigenous peoples should have whaling rights but small coastal communities should not, because indigenous people are (1) ethnically distinct and (2) have not shared in the benefits of modernization and progress. In other words, a history of ethnically specific discriminatory deprivation causes indigenous people's claims to take priority over coastal communities' claims. Now, literally speaking, both arguments apply to whales themselves, but there is not yet any legitimate practice of claiming rights for whales. This undercuts any tight conceptual connection between the considerations of urgency suggested by a particular language (whether of rights or needs) and the range of application of that language. It seems more likely that what is going on here is an implicit cost-benefit analysis of the relative amount of pain and suffering of different claimants and a resultant prioritization of the claim with the greatest net worth. It is difficult to avoid a utilitarian framework to distinguish one group's pain and suffering from another's. This content downloaded from 157.55.39.157 on Fri, 08 Jul 2016 05:01:08 UTC All use subject to http://about.jstor.org/terms 314 LAW AND SOCIAL INQUIRY