NEWS RELEASE 619-297-9700 ext 1842
December 7, 2006
Law Professor’s New Book Shows How Legal Rights
May Define Who You Are in Society
Book is First to Examine Conflict Between Group-Differentiated Rights
and the Individual Right to Self-Invention
What groups do you belong to in society? What special rights do you have because you are a member? Who decides your individual or group identity in society? Are your individual choices being denied or limited because of your membership in a specific group?
These are among the questions that Thomas Jefferson School of Law Professor Eric Mitnick examines in his new book, Rights, Groups, and Self Invention: Group-Differentiated Rights in Liberal Theory.
The work examines the complex subject of group-differentiated rights, or simply, the rights an individual has because of membership in a social or cultural group. Mitnick examines how these rights constitute aspects of members’ social identities, and whether this is cause for concern when examined through the prism of liberal theory.
“In its basic form,” says Professor Mitnick, “liberal theory is a theory about freedom, and part of that freedom is the individual right to self-invention. A core value of liberalism is the notion that being human means being free to construct your own identity.”
In part because individuals are treated differently based on group membership, group-differentiated rights are among the most controversial rights in our legal system. They include such rights as affirmative action, civil unions, disability rights and religious conduct exemptions. Even the right to vote, a right that is reserved exclusively for citizens, is a group-differentiated right.
“The conflict with liberal theory arises,” Mitnick says, “because group-differentiated rights influence social perceptions of the group members who bear these rights. Think of a right such as the right to vote in the early nineteenth century, when only white males who owned property could vote. That legal exclusion was based on an idea that members of other groups were not worthy – that they didn’t possess the moral or civic characteristics to be allowed to vote. The same idea is potentially in play today with exclusions from marriage for same-sex couples.”
But it’s not just the exclusion of groups that enables differentiated rights to constitute aspects of individual’s social identities. Mitnick maintains that rights that especially seek to include members of previously oppressed groups, as well as rights that afford members of religious and cultural groups the ability to distinguish themselves from the rest of society, also present the prospect of a moral cost from a liberal perspective.
“If legal institutions are empowered through rights to construct aspects of our identities – to determine who and what we are – and liberalism calls for self-invention, then group-differentiated rights potentially put us on a collision course with liberal values,” says Mitnick. “Social construction is contrary to self-invention. But the true extent of the moral cost depends on the type of group-differentiated right in question.”
Mitnick ultimately describes three types or models of group-differentiated rights. The first includes rights that exclude groups on the basis of some ascribed characteristic -- like the early right to vote or the contemporary approach to same-sex marriage. This, Mitnick asserts, is plainly contrary to liberal values.
The second type of group-differentiated rights – rights that seek affirmatively to include previously oppressed groups, such as rights to affirmative action, civil unions, and disability rights – are more complicated from a liberal perspective. These sorts of rights constitute aspects of human social identities in one area, but may also enable individuals the freedom of self-invention in other areas of their lives.
“Think of an individual who has been labeled ‘disabled’ in the law,” Mitnick says. “A critical aspect of that individual’s identity will have been determined for him. At the same time, because of the right, the individual will be free to go out and invent himself in myriad other ways.”
The third type includes rights granted to members of religious and cultural groups. This type of group-differentiated right, according to Mitnick, actually enables collective self-invention along cultural or religious lines – rights to religious conduct exemptions or language rights permit group members to differentiate themselves from the rest of society, and in that way to invent their own identities.
“This type of right can be consistent with liberal theory,” Mitnick suggests. “The problem is when elites or majorities within religious or cultural groups use their cultural rights and religious exemptions in ways that oppress sub-groups within their membership group, usually women and children.”
Rights, Groups and Self-Invention, which has been praised by Mitnick’s peers across the country, is the first comprehensive treatment of this important form of right.
“Group-differentiated rights are among the most controversial, but also the most important, rights in our contemporary legal system” notes Mitnick. “From a moral perspective, we need to remain attuned to their benefits and to their costs.”
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EDITORS NOTE: Professor Mitnick is available for interviews. Please contact Communications Specialist Chris Saunders at 619-297-9700 x 1842 or at: csaunders@tjsl.edu