Jump to ContentJump to Main Navigation
Making Rights ClaimsA Practice of Democratic Citizenship$

Karen Zivi

Print publication date: 2012

Print ISBN-13: 9780199826414

Published to Oxford Scholarship Online: January 2012

DOI: 10.1093/acprof:oso/9780199826414.001.0001

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2019. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use.  Subscriber: null; date: 17 September 2019

Rights Claiming as a Practice of Persuasion

Rights Claiming as a Practice of Persuasion

(p.43) 3 Rights Claiming as a Practice of Persuasion
Making Rights Claims

Karen Zivi

Oxford University Press

Abstract and Keywords

This chapter suggests that we need to think of rights claims as claims of persuasion rather than as trumping claims, a shift that involves more fully appreciating them as perlocutionary utterances that have uncertain effects. It draws on the work of Arendt to develop an understanding of persuasion as a performative political practice that recognizes the plurality of individual perspectives and the impossibility of definitive political outcomes. It then explore J.S. Mill’s rights theory and politics to illustrate what a persuasive politics of rights looks like and to reveal its democratic potential. It thus challenges those traditional readings of Mill that interpret him as advancing a liberal individualism at odds with democratic values and practices.

Keywords:   persuasion, Hannah Arendt, J.S. Mill, atomistic individualism, perlocutionary utterances

As I argued in the previous chapter, reexamining some of our common intuitions and contemporary arguments about rights claiming from the perspective of performativity reveals that the rights-as-trumps conception is more pervasive than we might have first thought. It is also troubling for reasons other than those we might have expected. A conception of rights-as-trumps is a problem for democracy and democratic theory not because it misrepresents human nature, perpetuates a litigious individualism, or fails to accurately reflect what a right is, as critics often suggest, but, rather, because it overemphasizes the possibility, perhaps even the importance, of defining and determining the success of a rights claim.1 To the extent that we think of and theorize rights as trumps of any kind, we unnecessarily narrow our understanding of the performative dimensions of rights claiming and focus our attention on only (or only some of) the illocutionary dimensions of the practice. This tendency, expressed in a preoccupation with mapping out the felicity conditions of rights claiming, not only obscures other important aspects of language use and linguistic being but also undermines efforts to cultivate a political ethos suited to the demands of contemporary democracy. In this chapter I offer a performative conception of rights claiming that is more attentive to the complexities of language and the demands of democratic politics. I capture this by discussing rights claiming as a perlocutionary practice of persuasion, and I turn my attention to the work of Hannah Arendt and John Stuart Mill to elaborate.

If rights claiming is to be understood as a practice of persuasion rather than the act of throwing down a trump card, both Hannah Arendt and John Stuart Mill may seem unlikely thinkers from whom to draw inspiration. Arendt is famous for what appears to be a devastating critique that highlights the futility of rights claims made in the early part of the twentieth (p.44) century, and John Stuart Mill is considered by many to be a champion of precisely the conception of rights-as-trumps I questioned in the previous chapter.2 However, as I suggest in the pages to come, such readings may be too quick to pigeonhole these thinkers, one as a critic and the other a champion of a particular kind of rights. Reading their writings together, and with attention to their insights about the performativity of language and its implications for democratic politics, I suggest that both thinkers embrace a more complicated understanding of rights claiming—one that sheds light on both the promise and the limits of the practice for the creation and re-creation of democratic community.

Making Claims of Persuasion

To call rights claiming an act of persuasion and to promote persuasion as an important democratic practice rests on a particular definition of persuasion. After spending some time on the outskirts, perhaps even in the trash bin of democratic theory, “persuasion” has made something of a comeback in recent years. Like a number of the other terms under discussion in this book, however, the frequent use of the term “persuasion” should not be mistaken for its having a single meaning or a common emphasis. Bryan Garsten, for example, rescues the term from its negative association with practices of political manipulation and deceit, in part, by revealing the important place it has had in the history of democratic theory; and contemporary theorists of deliberative democracy are suggesting, more and more, that persuasion is a key aspect of any politics committed to the equality of persons and legitimate outcomes.3 However, for some like Garsten, persuasion is a practice that, when understood properly, engages both sentiments and reason in ways that make it possible for us to connect with others. For others, persuasion is often defined, at least implicitly, as a purely logical activity that leads another person to change his or her mind. In Garsten’s case, persuasion is an activity that explicitly eschews force or coercive power, while in the latter case, such power is often precisely persuasion’s political virtue. Further confusing things, the term itself can refer either to the act of persuading or to fact of having been persuasive, and this ambiguity then leads to the question of whether one can be engaged in persuasion and yet fail to be persuasive, be persuasive without persuading. If, however, we think about persuasion from the perspective of a robust understanding of the performativity of language, we might be able to avoid such confusions.

(p.45) Claims of persuasion, J. L. Austin’s brief discussion on the topic tells us, are best understood as perlocutionary utterances rather than illocutionary ones. This means, as I mentioned in chapter one, that utterances meant to persuade have “effects” rather than a particular “force,” as well as the considerable possibility of gaps between the words spoken and the resulting effects. This is due, in part, to the fact that perlocutions are decidedly “unconventional” speech acts. Their performativity is not a result of their having met a set of felicity conditions nor would one categorize the effect of a perlocutionary utterance as a “successful uptake” or “felicity.” In fact, there is no formula by which we can capture what precisely happens by the making of a persuasive (or other perlocutionary) utterance because it is not determined, or at least not dependent upon, the speaker having cited appropriate norms.

This means that the outcomes of perlocutionary utterances like claims of persuasion are unpredictable and contingent: what happens by rather than in the utterance is quite outside the realm of the speaker’s control and quite separate from the whole of the performative force of the claim. This does not, however, make a perlocutionary utterance any less an important performative speech act to recognize and appreciate; it simply makes it a distinct kind of speech activity. It is distinct because it engages the affective dimensions of human subjectivity—because it influences, and even constitutes, the way a speaker or listener feels. In addition, a perlocutionary utterance involves the speaker’s sharing his or her perspective on the world, imagining the perspectives of others, and recognizing that one’s utterance may or may not have the desired effect on others’ behavior. For example, when I shout “Fire!” in order to warn someone about an impending danger (an illocutionary utterance), I may also be trying to scare the person and persuade him or her to flee the building. While my utterance will likely warn the person if I have said it according to the proper conventions—that is, if I have met the appropriate felicity conditions of warning—the emotional impact of my utterance is beyond my control. I may think that “Fire!” will trigger fear because it would for me, and I imagine that you and I would feel similarly in the case of impending danger, but my utterance may trigger a sense of heroism in you that I could only admire rather than understand. That someone may be persuaded to flee the building while others are persuaded to run into the building are both effects that I must accept if I understand what I am doing by making such a claim. The point here is that the effect of a claim of persuasion is not something that can be controlled through the application of rules; its “effectiveness” can neither be taught nor perfected, as (p.46) Danielle Allen notes.4 It is, however, precisely this contingency and affectivity that make perlocutionary utterances, like claims of persuasion, important forms of political speech.

To explain what it means to recognize persuasion as a perlocutionary act that has an important place in a democratic politics, Hannah Arendt’s work is helpful. Though Arendt is clearly writing before the advent of what has come to be known as “speech act theory,” Arendt the agonistic democrat reveals a great appreciation for the constitutive or generative activity that is the practice of speaking to and communicating with others. She is, of course, well known for celebrating and promoting active engagement with others in the public realm as central to both the meaning and the possibility of democratic freedom; and she is known, though not always celebrated, for suggesting that this engagement involves—indeed, cannot and should not try to eradicate—discord, conflict, and uncertainty of outcomes. This makes her vision of democratic politics quite distinct from more traditional or dominant understandings of the properly democratic or political. Her understanding of politics calls into question the belief that political speech and activity are purely or solely means to an end and challenges the idea that freedom is the state of being unencumbered by or unengaged with others. What is less well established about Arendt’s vision is that it takes the practice of persuasion, a practice that is decidedly perlocutionary, as a quintessential component of political activity.

As readers familiar with Arendt know, she bases her vision of politics and democratic freedom on the political practices of ancient Greece, or rather, a very particular moment in ancient Greece that precedes Plato’s writing of the Republic. According to Arendt, the Greeks of Socrates’ time and before understood political activity as a practice of exchanging views or opinions with others, a practice they called peithein and which Arendt translates roughly as “persuasion.” Peithein, Arendt explains, entailed the sharing of one’s opinion (doxa) or way of seeing the world with one’s fellow citizens, with the expectation that one would be exposed to their perspectives in turn. On this account, to make a claim in the political realm meant to discuss and to debate one’s understanding or view of the world (dokei moi) while listening to and learning from the views of others.5 Arendt is drawn to this vision of politics because of its fundamental recognition of the plurality or distinctiveness of individuals as well as its faith in people’s capacity to make judgments for themselves. Peithein, which Arendt identifies as “the highest, the truly political art,” not only recognizes and embraces the fact that different individuals have distinct (p.47) perspectives on the world but also appreciates that the point of political activity is to have the opportunity to present and debate these different takes on the world rather than to determine whose perspective is necessarily the correct one.6 The early Greeks understood that acting and speaking in public, engaging in politics, were neither equivalent to nor measured by one’s ability to ensure that a particular outcome resulted from one’s utterance. Instead, they valued claims making in the public realm for the opportunities it provided, not the outcomes it promised: “To assert one’s own opinion belonged to being able to show oneself, to be seen and heard by others. To the Greeks this was the one great privilege attached to public life.”7 The privilege to be savored is the opportunity to act persuasively, not the guarantee of having been persuasive, and this opportunity is an essential component of human freedom, as Arendt sees it. While Greeks valued the fact, in other words, that “the world opens up differently … according to [an individual’s] position in it,”8 Arendt values the fact that the Greeks refused to reduce the importance of political engagement to successfully persuading or convincing another to see the world from their point of view.

For those in need of a more robust answer to the question “Why participate in the public realm if not to effect a particular outcome?” Arendt reminds us of the fact that participation in public is the way to be seen: through acting in public we “disclose” our identity. In other words, in the process of sharing our perspectives in the public realm, and being seen and judged by others, people tell stories about who they and others are. These stories, Arendt suggests, capture our identity: not “what” we are as in our gender or ethnicity, but “who” we are as in what perspectives on the world we hold. These are the stories and actions through which our identities are disclosed and they “reveal an agent, but this agent is not an author or producer.”9 To say that the speaking subject is an agent who is neither the author nor the producer of his or her own story is to recognize that individuals often have little control over how their utterances are understood or what they come to mean to others. We may articulate a claim or act in a way that is meant to convey identity, but our intentions and our understanding are not the determining factors in the meaning given to our utterances and actions given that such utterances take place in a realm populated by individuals with different and partial perspectives. Members of political communities will interpret our utterances in a variety of ways; they will tell multiple and perhaps contradictory stories about our actions likely to have little to do with what we had intended. We should embrace (p.48) this contingency, Arendt suggests, because its rests on a commitment to human plurality and judgment, as well as evinces a recognition of human freedom and a faith in the possibility of the new. Peithein, in other words, is a practice of freedom, whether of thought, of action, of shifting perspective, that makes the new or unexpected possible:

This freedom of movement, then—whether as the freedom to depart and begin something new and unheard-of or as the freedom to interact in speech with many others and experience the diversity that the world always is in its totality—most certainly was and is not the end purpose of politics, that is, something that can be achieved by political means. It is rather the substance and meaning of all things political.10

Embracing a particularly perlocutionary understanding of persuasion (e.g., one in which uncertainty of outcome is expected) as an essential political practice is, of course, considerably at odds with the dominant Western understanding of politics. Indeed, according to Arendt, since the days of Plato, philosophers have sought to subordinate the realm of human affairs to the realm of philosophy, to contain a world of contingency and uncertainty through the application of philosophical rules. But this is, according to Arendt, actually “an escape from politics altogether.”11 In giving pride of place to the application of philosophical reasoning to the realm of human affairs, in casting aside a politics of persuasive claims-making, in embracing a means-ends understanding of politics, we—thanks in large part to Plato—obscure the fact that “[p]olitics deals with the coexistence and association of different men” who have various opinions or perspectives on the world that are not necessarily shared by or agreeable to all.12 This disregards and degrades the distinctly human activity of sharing perspectives and ultimately robs the world of new ways of seeing and interacting. From Arendt’s perspective, this insistence on being able to determine the philosophical principles by which one can rightly organize political life continues to dominate the political thinking of the Western world, at great cost to ourselves. Lost in the desire to find the universal truths and abstract rules with which to determine the course of public interaction are the very activities and opportunities that make us human. Lost is the willingness and courage to share individual opinions and perspectives, to disagree and debate, and to make judgments—all of which are activities essential to human freedom and captured in the practice of persuasion.

(p.49) That Arendt is championing a politics of persuasion does not necessarily mean, however, that she champions a politics of rights claiming. Indeed, on some interpretations of her work, Arendt’s understanding of politics explicity rejects rights claiming—or at least the claiming of human rights. Her writings, particularly on the rights claiming of stateless persons before and during World War II, seem to suggest as much. When rights claims were made by individuals without nation-state citizenship status, she reminds us, they proved to be quite a disaster. Claims made by stateless persons and in the face of the horrific abuses of totalitarian regimes went unheeded and failed to protect individuals from grave harm. Their meaningfulness and power proved to be tied up with precisely the membership in a nation-state that the rights claimants lacked. Persons rendered stateless were basically rendered rightless: when individuals had only those rights that were supposed to exist beyond the state to fall back on for protection and recognition, they found that there was “no authority … left to protect [these rights] and no institution … willing to guarantee them.”13 If rights claiming was meant to change the situation of the stateless, Arendt seems to suggest, the practice failed and failed, in part, because of a faulty understanding of the nature of rights themselves: they are not the irrefutable birthrights of human beings. That Arendt reveals rights claims to be anything but trumping claims with indisputable metaphysical foundations has led some scholars to read her as contributing to arguments outlining the philosophical bankruptcy of rights theory and the political impotence of rights claiming.14 I would argue, however, that Arendt’s discussion of the rights claims of the stateless actually sheds light on the perlocutionary nature and democratic character of the utterances. Rights claims, she shows us, never trump because of their particular philosophical definition and we cannot guarantee the efficacy of the claim by adopting a set of rules in advance. Instead, rights claims are revealed to be equivocal utterances that are made in the context of a public composed of a plurality of perspectives and thus open to differing interpretations.

That rights claims are characterized by radical contingency need not be reason for despair or for rejection of rights altogether. Certainly not if we place rights claiming in the context of a politics of peithein and thus recognize rights as perspectival claims rather than absolute truths. From this perspective, the lesson of supposed rights failure is not that we should no longer challenge indignity through recourse to rights language but, rather, that we must recognize that rights claiming is not enough. It is not enough (p.50) to make rights claims and expect that they command assent because they describe some irrefutable fact about the world or human nature or because we have followed a set of rules precisely. Instead, we must recognize that the very meaning and power of the rights claims are agreed upon and given reality by communities of individuals. They are not discovered nor given by human nature but, rather, created through the process of civic engagement, debate, and deliberation; and they, therefore, require that citizens “act in concert” to constitute their meaning and ensure their preservation and power. Rights do not, and cannot, as the experiences of totalitarianism teach, exist independent of and prior to politics. Nor are rights protected and preserved through a constitution, a bill of rights, or even a democratic state alone. Indeed, it is the political activity of citizens that gives rights claims their meaning and power. The right to engage in political activity, the right and space to share opinions and act in concert with others—these are, for Arendt, more fundamental and essential to human well-being and freedom than even the rights of citizens, and such rights are only guaranteed by those who actively claim them.

I am suggesting, then, that we place Arendt’s discussion of rights claiming in the context of her embrace of a Socratic understanding of politics. This entails adopting an understanding of the practice of rights claiming that eschews precisely the expectations that are implicit in a rights-as-trumps conception. To accept that politics is about sharing opinions and making claims of persuasion rather than necessarily persuading another, proposing absolute truths that can compel assent, or even fixing the rules in advance to guarantee specific outcomes, the political actor must forgo the expectation that he or she can control the outcome of political claims making. This requires that rights-claiming individuals embrace a politics of uncertainty rather than the politics of instrumentality and means-ends calculations that we often associate with the rights-as-trumps metaphor. Making rights claims, on this account, means recognizing that however forcefully one may assert her claim or however much she believes her perspective to be right or true, she must accept that it is still a perspectival claim rather than an absolute truth, a perlocutionary utterance rather than an illocutionary utterance, a perspective rather than a trump. Moreover, she must accept that because rights claims are expressions of individual ways of seeing the world, and because they are made in the context of a plurality of perspectives, their acceptance is something over which we have little control, their felicity never assured. On this account, rights claims are more akin to aesthetic claims than to mathematical (p.51) formulas or absolute truths, and thus open to disagreement. As Linda Zerilli reminds us, just as we can never force another to agree that a painting is beautiful, “there is no single argument that can or should persuade everyone capable of reason, regardless of standpoint or context, of a particular … political judgment.”15 Likewise, we can never force another to agree that I or we have a right to something. That is a conclusion that results from the judgment of the listener and not an effect that can be guaranteed by the intention behind a speaker’s words, the words she chooses, or even the circumstances under which she speaks. Rights claiming is a perlocutionary activity that entails the sharing of different, multiple, and often divergent and conflicting points of view, and is thus always open to the interpretation and judgment of others.16

Though there is debate about Arendt’s reading of Greek history, as well as her arguments about rights, what I want to emphasize here is the value she places on engaging with others and on the importance of embracing the unpredictability of that engagement. Both of these, I am suggesting, have important implications for understanding the practice of making rights claims. Speaking and acting in public, such as we do when we make rights claims, requires that we recognize that each individual has a unique perspective on the world. To share our perspectives with others, and to welcome theirs in turn, requires openness to seeing the world from a variety of perspectives beyond our own. Moreover, it requires acknowledging that we cannot guarantee outcomes no matter how much we would like to. Rights claims, on this understanding, are not trumps because they are not irresistible and irrefutable claims that promise particular results; they are, instead, claims of persuasion. Rights claiming is, then, an activity that involves presenting, debating, and contesting opinions or perspectives. It requires recognizing the plurality of opinions and individuals and embracing the fact that what we do in the political realm entails a great degree of risk and a willingness to accept that one can never guarantee a particular outcome.17

This does not mean, however, that rights claiming or any practice of persuasion precludes the possibility of making judgments or even coming to agreement. Opinions, Arendt reminds us, are not mere “subjective fantasy” or wholly arbitrary points of view. Coming to agreement, achieving some kind of objectivity, is possible, though not as we might assume. “‘[O]bjectivity,’” Arendt explains, “resides in the fact that the same world opens up to everyone and that despite all the differences between men and their positions in the world—and consequently their doxai (opinions)—‘both (p.52) you and I are human.’”18 What makes a claim persuasive is not the fact that it exists in some realm beyond the world of human affairs but, rather, what it makes visible. As Zerilli explains, “If an argument has ‘force,’ it is more as a vehicle of imaginative ‘seeing’ … than an irrefutable logic.”19 The point here is that the meaning and outcome of our utterance is not reducible either to an absolute, objective truth or to our most sincere intentions. It is, instead, constituted in the context of a plurality of perspectives. Making claims of persuasion in the public realm, in other words, involves asking of ourselves and others that we consider the point of view—the ideas, beliefs, and commitments—of our fellow citizens. As Garsten argues, persuasion is important for democratic politics because it “draws us out of ourselves”—that is, it “require[s] us to step outside our particular perspectives without asking us to leave our particular commitments behind.”20 Agreements are thus reached only through sharing perspectives on the world with others and seeing the world through their eyes, but such agreements must then be recognized and embraced as contingent and always open to reinterpretation and contestation.

Below I offer more concrete examples of what it means to understand the performativity of rights claiming in terms of the activity of persuasion. To do this, I turn to the work of John Stuart Mill, a theorist usually read as a quintessential liberal thinker whose work provides an early defense of the rights-as-trumps metaphor. Against this interpretation, I argue that Mill actually advances an understanding of rights claiming as a practice of persuasion. Moreover, in his own political practice, he sheds light on the fact that the value of rights claiming lies in its ability not necessarily to constrain the actions of governments or individuals but, rather, to provide opportunities for individuals to practice being democratic citizens.

Who Makes Rights Claims? Rereading Mill on Rights

John Stuart Mill’s work has been described as expressing the fundamental commitments of liberal political theory, as representing the very heart of liberalism. Given its embrace and promotion of a strong commitment to individual freedom and its seemingly individualistic conception of the rights-bearing subject, Mill’s writings are traditionally read as promoting a conception of rights-as-trumps that is not only counter-majoritarian, but also at odds with the values needed to make democracy flourish.21 This (p.53) reading is not without grounds. Mill certainly does tell us that with regard to action that “merely concerns himself,” an individual’s “independence is, of right, absolute” and that “Over himself, over his own body and mind, the individual is sovereign.”22 It would seem that Mill embraces what Charles Taylor calls the primacy of rights and atomism theses because of his very explicit commitment to seeing individuals as the best judges of their own interest and his argument that individual and social development are more likely to be enhanced by leaving individuals to themselves than by their being influenced by impulsive majorities.23 Rights, Mill seems to suggest, are precisely what protect individuals from the pernicious influence of social forces: “To have rights is to have something which society ought to defend me in the possession of” not because, as natural rights scholars and social contract thinkers suggest, rights adhere to individuals by virtue of their humanity or because they are the natural birthright of human beings, but because they allow for human development.24 Indeed, to make a rights claim appears to be, for Mill, to put down the ultimate trump card. When individuals claim rights that allow them to protect their own freedom without doing harm to others the ought and should implicit in the rights claim “grow into must.”25 If, however, we consider Mill’s arguments in light of some of his political activities and from the perspective of the theory of performativity developed in the preceding pages, a different understanding emerges. Mill should be read, I argue, as advocating a politics of persuasion in which the practice of rights claiming is a perspectival rather than a trumping activity. Rights claiming, on this account, is a valuable practice for democratic societies not because it results in specific policy or legal ends but because it provides opportunities for civic engagement and the cultivation of political judgment. Such a counterintuitive reading of Mill’s defense of individual liberty and understanding of rights rests on a very particular interpretation of his theory of the subject and thus I begin here.

It is in Mill’s System of Logic (The Logic) that we find him working through what it means for individuals to be free and where we find that this freedom is not characterized by a radical separation from others. In this work, particularly the chapter “Of Liberty and Necessity,” we see Mill’s frustration with the metaphysical distinctions between freedom and determinism that he has inherited and find him struggling to articulate a theory of human subjectivity that avoids the extremes of both the doctrines of free will and of necessity popular during his day. It is here that we get a glimpse of his deep investment in the kind of intersubjective dimensions (p.54) of human character that his critics find missing in his work. For Mill, who we are, what we do, how we think—our volitions and our actions—are not the result of being left alone, nor do individuals flourish that way, isolated in their sphere of freedom, protected from social forces by a set of inviolable borders. In fact, it is almost impossible, Mill suggests, to conceive of individuals as isolatable from social forces or to imagine character as emanating from some pure form of unshaped consciousness or will. As he explains in The Subjection of Women, it would be impossible to “isolate a human being from the circumstances of his condition, so as to ascertain experimentally what he would have been by nature.”26 All that we can do is consider the individual in his or her context, as affected by various—perhaps even limitless—influences and forces.

Mill’s recognition of the social locatedness and relationality of individuals is rooted in his embrace and modification of what was called, at the time, the doctrine of necessity. The doctrine of necessity posited that human actions had identifiable causes. It showed that “our volitions and actions are invariable consequents of our antecedent states of mind.”27 From Mill’s perspective, this meant that human behavior had to be attributed to causal factors in much the same way that movement in the physical world would be attributed to physical causes. For example our education, our upbringing, our work experiences—all these would shape our character and inform our temperament and our actions. What was taken to be natural about men or women, for example, female modesty or male aggressiveness, would have to be understood as the product of our educational, social, familial, and political environments. If these circumstances were to change, our characters would change and this, in turn, would change the decisions we would make and the actions we would take.

Such an attribution of human behavior to causal laws and external influences was quite alarming to many. Proponents of the doctrine of free will balked at the idea that human volitions were the effects of external influences and thought that such a belief was “inconsistent with every one’s instinctive consciousness, as well as humiliating to the pride and even degrading to the moral nature of man.”28 If all of human behavior were attributable to a specific cause, how could we explain our feelings of free will, and what kind of responsibility or accountability would be left for the individual? We would all be social dupes. Mill, however, believed otherwise. His particular understanding of the doctrine of necessity explicitly rejected the idea that individuals were socially determined. Indeed, he argued that causation was actually consistent, rather than inconsistent, with much of our (p.55) experience. Empirically, our experiences were more likely to confirm than to dumbfound causal explanations of our actions. Philosophically, causation had never been completely at odds with doctrines of free will. One needed just consider religious doctrines to realize that freedom of the will could be consistent with antecedent causes such as God’s will. To be free, in other words, need not foreclose the possibility that our actions have antecedent causes, empirically or philosophically. In fact, to believe otherwise, Mill suggested, was to make a potentially grave error, and to embrace a “false philosophy.” For Mill, the doctrine of free will divorced from any theory of causation was not only incorrect but also dangerous: “The notion that truths external to the mind may be known by intuition or consciousness, independently of observation and experience, is, I am persuaded, in these times, the great intellectual support of false doctrines and bad institutions.”29

In rejecting the doctrine of free will, Mill was careful to distinguish himself from those who adopted a stricter interpretation of the doctrine of necessity and assumed an absolute determinism to human behavior. Proponents of the strict interpretation, he argued, make as grave an error as proponents of the doctrine of free will when they posit an irresistibility or absolute determinism to human actions. Simply “[b]ecause something will certainly happen if nothing is done to prevent it,” does not mean that “it will certainly happen whatever may be done to prevent it.”30 Given that there is no “mysterious compulsion” that determines the shape of our all actions, Mill suggested replacing the term “necessity” with the term “causation.” “The application of so improper a term as Necessity to the doctrine of cause and effect in the matter of human character seems to me one of the most signal instances in philosophy of abuse of terms…. The subject will never be generally understood, until that objectionable term is dropped.”31 Mill’s modified doctrine of necessity or causation draws attention not to what must happen but only to what may happen, given certain circumstances. Certain things will occur if unimpeded. For example, while it may be true that we will die if we go without food or air, it need not be inevitable that the lack of food or air will lead to our death. Causation did not, according to Mill, entail a must, for there were many other factors that would come into play to alter the outcome of particular causes: “human actions are … never … ruled by any one motive with such absolute sway, that there is no room for the influenced of another.”32 Moreover, it would not be possible to know all the circumstances that influence action and volition. So numerous and varied are the circumstances that shape an (p.56) individual’s character that it would be difficult, if not impossible, to determine precisely which influences caused which effects. These facts rendered the doctrine of necessity far less absolute and determinist, far more unpredictable and contingent, than some thought.33

Mill’s rejection of the strict interpretation of the doctrine of necessity was premised on more than simply an awareness of the potentially infinite circumstances that may shape a person’s character. He also recognized something that is beyond the reach of circumstances and is, in fact, to be considered a circumstance itself. One of those innumerable circumstances that shapes individual character and generates diversity of character and unpredictability of action is our feeling of moral power, the “power to alter [our] character.” While refusing to call this free will, Mill described it as a “feeling of our being able to modify our own character if we wish,” and he remained committed to seeing this power as consistent with the modified doctrine of necessity he embraced. He saw it as a perversion of the doctrine of necessity to believe that one’s “character is formed for him, not by him” for “[w]e are exactly as capable of making our own character, if we will, as others are of making it for us.”34 As Mill explained elsewhere, this power to modify our character derives, in part, from the fact that individuals are born with certain capacities that include the ability to use their minds and senses to perceive the world around them. Individuals have the ability to make distinctions and discriminate among competing ideas and desires, to make judgments and to register preferences. These capacities are both rational and sentimental. They include an ability to make sense of the world not only through logic but also through feelings, particularly the feelings of sympathy and self-defense that actually connect us with others.35 When we recognize the many ways in which circumstances can interact to encourage or curtail these capacities and instincts, it becomes clear that human beings have potentially limitless possibilities. In fact, it is only in social context and through social relations, through the “artificial discipline” of education, legislation, and social arrangements, that these potentials and capacities come to have meaning.

For Mill, unraveling the mystery of human subjectivity required rejecting facile depictions of individuals as either purely free-willing and self-interested or as unwitting social dupes. Recognizing an element of truth contained in both the doctrine of necessity and the doctrine of free will, Mill suggested that the two be joined together in order to more accurately and adequately capture the human experience. Human beings must be understood as simultaneously influenced by and yet capable of modifying (p.57) the linguistic and social communities in which they are embedded, as actively engaged in making sense of the world around them and in practices of persuasion and judgment. It is in Mill’s understanding of rights claiming, as well as his own engagement in rights politics, that these capacities and practices are illuminated.

Why Make Rights Claims?

What bearing does Mill’s ontology have on his understanding of the practice of rights claiming? What is being done when someone makes a rights claim if there is no sovereign subject trying to set boundaries between him or herself and others? When we take seriously Mill’s recognition of the social dimensions of subjectivity, it becomes clear that he did not, as traditional readings would have it, imagine that individuals deployed rights claims in order to isolate themselves from all other social influences. In fact, his appreciation of the fact that individuals do not, or even cannot, develop best when left completely alone informs Mill’s defense of rights claiming as a site of the practice of persuasion and the exercise of judgment. In making rights claims, that is, individuals learn to share their perspectives on the world with others while considering the views and feelings of those with whom they share a community, and they do this in ways that draw on both reason and sentient. In the process, they create and reshape the boundaries and meanings of individual identity and community. Consider Mill’s arguments about rights in Utilitarianism. Though we usually read Mill’s description of rights in terms of absolutism and divisiveness, Mill actually offers a challenge to the rights-as-trumps conception. As Mill explains, a right, or rather “the idea of a right,” represents a particular set of feelings, beliefs, and demands that we commonly associate with justice. The idea of a right brings together both our ideas of justice—what we understand intellectually or what Mill associates with our rational instincts—and our sentiments of justice, or what we feel or what Mill associates with the animal instincts. A rights claim, he is suggesting, is not simply the instrument, that is, tool we bring out at a particular time in the game of politics. Instead, it is an activity through which we try to capture and express our reason and our feelings, our understanding of the rules that determine injury or violation, as well as our desire for retaliation and revenge. Rights claiming expresses a hurt and enacts a demand, or at least a provisional one, based on a perception of a violation or injury (p.58) and a common desire to punish or retaliate. This knowledge and these feelings, Mill explains, have roots in the complex and powerful mix of self-interest and connectedness, of concern with defending the self and sympathy toward others, as well as recognition that we are embedded in communities with existing norms and conventions.

Mill presents us with a picture of the practice of rights claiming as one that involves both our reasons and our sentiments. When we call something a right, when we speak of violations of rights, we mean that there has been some violation of a rule of conduct, some injury, and we demand punishment out of a desire for revenge.36 When we make rights claims not only are we sharing our own feelings and reasons with others but we are also attempting to see the world from their point of view. As Mill explains, the desire for retaliation that motivates a rights claim is an intense feeling shared by all sentient beings rooted in a common need for security. And this feeling gives a rights claim the sense of absoluteness. That, however, does not make a rights claim a moral claim. As Mill explains in Utilitarianism, absoluteness is associated with an animal feeling manifest in a desire for retaliation rather than being based in anything purely rational or intellectual. A rights claim becomes a moral claim only when this desire is combined with what he calls “superior intelligence” or “enlarged sympathy.” The sentiment of justice that stems from a desire for revenge only becomes moral when it is subordinated to “the social sympathies.” Rights claims must consider the interests of society as a whole and recognize the individual as a part of that society in order to be moral; otherwise, they are simply the expression of sentiments untempered by social feelings. In other words, justice and morality, often manifest in rights claims, do not derive from purely individualistic desires for revenge. Such desires must be subordinated to social feeling and it is enlarged sympathy that moves us from an individualistic thirst for retaliation back into the community where thought, discussion, and debate are central. It is in the process of claiming rights, then, that individuals have an opportunity to engage in the very practices central to the creation and cultivation of democratic citizens and communities. This practice provides individuals with an opportunity to consult their reason as well as their feelings, giving due weight to both in light of their membership in a larger community. It allows—indeed, requires—individuals to consider the world not only from their own perspective but from the perspectives of others as well.

Rights claiming thus offers an apt example of the intersubjective activities that Mill champions throughout his work. Contrary to the more (p.59) traditional readings of Mill as an anti-democratic elitist, as wholly concerned with protecting atomistic individuals from the influences of the state and society, Mill’s work as a whole, and his defense of the rights such as freedom of thought and expression, are better read in light of his embrace of participation in public life.37 Freedoms, often manifest in particular legal rights, are important to Mill because they offer opportunities for the development of the individual capacities for perception and judgment, as well as the development of affective ties between individuals and a sense of care for the community.38 Human beings, Mill reminds us, are fallible, prone to make serious errors in judgment that are then codified in legislation and action. These errors are only corrected through debate, deliberation, and contestation of ideas and opinions. But freedom of thought and expression are valuable not simply because they may allow us to replace falsehood with truth or to develop new ideas and displace pernicious ones, but also, and perhaps more important, because it is through contestation and engagement with differences of perspective that one comes to be fully human. “Judgment,” Mill argues, “is given to men that they may use it.”39 Like any other muscle, it must be exercised in order for it to remain strong, and it can be exercised through lively discussion that forces us to examine our deeply held beliefs. Thus, it is through acting on our opinions and challenging presumed social truths, acting and speaking in public, that we exercise and improve the very faculties that make us human. And for Mill, it is best to do this in ways that are contestatory.

As Jeremy Waldron argues, Mill greatly appreciates the value of “moral distress” or “ethical confrontation.” Differences of opinion and variation among lifestyles often come into conflict, and this “open clash between earnestly-held ideals and opinions about the nature and basis of the good life” is essential to individual and social progress.40 In Mill’s words, debate and discussion require the “reconciling and combining opposites” that is “a rough process of a struggle between combatants fighting under hostile banners.”41 And though having one’s fundamental beliefs and practices questioned may be painful, individuals develop open-mindedness, a tolerance of difference, and the ability to listen as well as persuade in the process. For Mill, then, antagonism between individuals and groups holding different opinions is not rooted in an innate competitiveness or a desire for isolation and absolute separation. Rather, politics as a process of refutation and contestation is a result of the deficiencies of the human mind and the usefulness of such challenges. In politics, Mill explains, opposition is healthy: “it is almost commonplace, that a party of order or (p.60) stability, and a party of progress or reform, are both necessary elements of a healthy state of political life.”42

In fact, Mill explicitly denounces the idea of a “frictionless” society. “Without the right to protest, and the capacity for it, there is … no justice, there are no ends worth pursuing.”43 The right to protest prevents error and even truth from “hardening into prejudice” and helps to prevent the development of passive individuals who lack the courage to think and act in new and different ways. Passivity or “peace in the intellectual world” is not, Mill writes in On Liberty, desirable if it means conformity of opinion and action. “[T]he price paid for this sort of intellectual pacification, is the sacrifice of the entire moral courage of the human mind.” Without lively debates over social norms and customs, society will not generate “the open, fearless characters, and logical, consistent intellects who once adorned the world.” But this character is not reserved for the geniuses or the elite. As if anticipating charges of elitism, Mill argues that freedom of thought is as important to the individual of average intellect as it is to the great thinkers. In fact, it is “even more indispensable, to enable average human beings to attain the mental stature which they are capable of.” A few great minds may be able to survive in a society in which there is despotism and uniformity of opinion, but “an intellectually active people” will never be produced under conditions of “mental slavery.”44

This is not to deny that Mill is concerned about the tenor of public debate and deliberation. He does argue for temperance and respectful disagreement. “The free expression of all opinions,” Mill suggests, “should be permitted, on condition that the manner be temperate, and do not pass the bounds of fair discussion.”45 “Vituperative language” and other unsavory tactics that might stifle certain opinions must also be rejected. However, Mill denounces a disorderly politics not because he desires harmony or unemotional debates but, rather, because he is concerned that tactics of bullying and denouncing opponents get used to silence certain ideas, particularly those that challenge and refute social norms and customs. The argument for temperance is not an argument for temperance as a good in and of itself but, rather, as a tool meant to safeguard the space for different voices and perspectives, to allow outrage and divergent opinions a place in politics, and to make space for that one voice, that one person with a contrary opinion at risk of being muted. Indeed, what we see Mill doing here is defending a particular kind of persuasive speaking, one that differs from manipulation or coercion to the extent that it respects the capacity of its listeners to make judgments.46

(p.61) Mill’s robust defense of individual liberty, one of the most often claimed rights, is not an attack on social relations in total but, rather, an attack on those relations that shut down ethical confrontation. Uncontested acceptance of public opinion and a lack of opportunities for political participation undermine the general well-being of individuals and society. As Mill suggests, a society that willingly accepts the opinions of a few without contestation or critical engagement becomes a society of “sheep” who simply follow rules and a society without strong affective ties. In fact, communal ties are produced through social activities such as the participation in social and political life. In Considerations on Representative Government, for example, Mill argues that individuals who are denied the right to vote in elections or a voice in the governance of a society become indifferent to social well-being and learn not to care about what happens to others. Under a despotic government, the mental faculties of human beings are deprived of exercise and thereby “stunted,” and social connections are disbanded. “Whenever the sphere of action of human beings is artificially circumscribed,” Mill argues, “their sentiments are narrowed and dwarfed in the same proportion…. Let a person have nothing to do for his country, and he will not care for it.”47

My point here is that Mill’s understanding of rights reiterates the themes of a politics of persuasion. With its emphasis on sharing one’s perspective on the world with others and being open to seeing it from their perspectives as well, with its embrace of perspectives constituted by reason and feeling, and with its acceptance of the fact that intentions do not guarantee particular political outcomes, Millian rights claiming, like a number of his other examples of public engagement, are important sites of and for the practice of judgment. As Nadia Urbinati points out, Mill’s emphasis on deliberation and participation takes its inspiration from the Athens of Socrates rather than Plato, and thus it places a high value on the capacities of citizens to form opinions and make judgments. But such capacities must be continually exercised for them not to atrophy, and this requires activities such as rights claiming that provide the forum to instill in citizens a “sense of mutuality and unity.”48

Being Persuasive

Mill’s interest in creating spaces for and supporting the activities of persuasion and judgment was not just theoretical. Indeed, his own engagement in politics exemplifies the kind of deliberative practices and (p.62) rights-claiming activities I am suggesting he championed in his philosophical works. Consider Mill’s work on behalf of women’s rights. Mill’s defense of women’s rights begins from recognizing the concerns and perspectives of his contemporaries. Rather than simply rejecting the idea that women are uninterested in and perhaps even unfit for politics and business, Mill offers an alternative explanation for the facts of “women’s character.” Poor character, he explains, is not naturally determined by women’s biology but is, rather, the result of external circumstances, “forced repression in some directions, unnatural stimulation in others.” Good character, he continues, would thus develop in women when they were free to pursue their own paths in life.49 Let women have the same rights and freedoms as men, Mill continues, and they will blossom in ways that are good for men and children as well. In presenting his perspective on women’s rights and character, Mill takes seriously the concerns and fears of his interlocutors. And while he offers a set of reasons to justify women’s liberty, he also engages the sentiments of his audience. Indeed, it is precisely his engagement with the fears of men reflected in his statements that women, when given the choice, will nonetheless remain caretakers of the house and family that is criticized for weakening, if not wholly undermining, the feminist impact of his arguments. What is often read as a reflection of Mill’s deep-seated Victorian paternalism can, I am suggesting, be read as part of the practice of persuasion, a practice that requires engaging others where they are as one tries to move them to embrace an alternative perspective.

Perhaps an even more apt illustration of rights claiming as a practice of persuasion comes from Mill’s engagement in the debate over the Contagious Diseases Acts (CD Acts). In 1864, the British Parliament responded to the spread of venereal disease among military personnel by calling for an elaborate system for the surveillance and regulation of female prostitutes. The CD Acts, reauthorized in 1866 and 1869, presumed women to be the source of infection and, therefore, the proper targets of arrest, detainment, and forced medical examination. Women suspected of being prostitutes were arrested and asked to submit to examination. If a woman refused, she was brought before a magistrate who would then determine whether she was, in fact, a prostitute and was therefore required to undergo examination. If found to be infected, she was then interned in a Lock hospital for up to six months, until she received a clean bill of health.

When the Acts were about to be reauthorized in 1869, and the reach of police powers to watch and arrest extended beyond discrete military (p.63) districts, a large repeal effort began. Mill was an active and vocal member of this campaign. From his perspective, there was no doubt that the Acts clearly violated women’s right to privacy and individual liberty, and expanded the power of the state in directions both unnecessary and dangerous. To make this point, Mill offered challenging testimony that drew upon a wide variety of moral, legal, and political arguments meant to address not just the reasons behind the Acts but also the fears and passions motivating it. Mill’s testimony is, then, an apt illustration of a politics of persuasion, a deliberative activity in which one advances particular perspectives on an issue while acknowledging the perspectives of others and accepting the indeterminacy of outcomes. What we see is Mill engaging in what Garsten, drawing on Aristotle, calls the exercise of “situated judgment,” “a more or less continuous activity of both constructing and dismantling standards, holding one commitment provisionally steady while evaluating others in light of it.”50

Among the standards Mill found most disconcerting and in need of dismantling were those having to do with notions of male and female sexuality. Supporters of the Acts justified the regulation of prostitutes with the argument that men had naturally uncontrollable sexual urges and therefore needed safe outlets for their sexual desires while women did not. Women, according to this interpretation, were not only able but also expected to control their sexual impulses, while the men were presumed to be beyond control. Indeed, Mill makes the case for women’s right to freedom from the prying eyes of the state by challenging the fundamental presuppositions of the Acts themselves. According to Mill, the Acts were not simply at odds with a growing social commitment to individual liberty but also they reinforced some unfortunate notions about male sexual desire. To believe that men needed a safe outlet for their sexual urges, and that these outlets were best protected through the arrest and detainment of suspected prostitutes, was something Mill found absurd. Such presuppositions failed, from Mill’s perspective, to appreciate the processes of causation, overestimating the “naturalness” of both female degradation and masculine sexual urges. Illicit male sexuality, he argued, was actually promoted, if not produced, by the Acts themselves. By providing men with a safe outlet for their sexual urges, the CD Acts fostered men’s sexual transgressions, leaving “the impression on the minds of soldiers and sailors … that it is not discouraged, that it is considered by Parliament a necessity which may be regulated, but which must be accepted, and that Parliament does not entertain any serious disapprobation of immoral (p.64) conduct of that kind.”51 In making “illicit indulgence” safe, Parliament cultivated the very unruly male sexuality it presumed to be so natural. And this, from Mill’s perspective, was a wretched arrangement that needed to be rectified, not through increasing men’s freedom but through curtailing it. To address the problem of troop readiness by making illicit sex safe for men was to “pander to [men’s] vices” and to create such a system was to offer “a monstrous artificial cure for a monstrous artificial evil which had far better be swept away at its root in accordance with democratic principles of government.”52

In keeping with his commitment to the doctrine of necessity and his recognition of the intersubjective and causal dimensions of subjectivity, Mill also suggested that public education about the threat of disease transmission or laws criminalizing disease transmission to wives be enacted. Such policies would encourage men to change their behavior, cultivating their ability to control their sexual desires. Persuasion, advice, and information could and would, in his opinion, lead to important behavior changes. For Mill, there was nothing naturally uncontrollable about male sexuality. Rather, like women’s supposedly natural inferiority or female prostitutes’ supposedly natural pathology, men’s supposed sexual propensity was actually a product of the very social arrangements presumed to reflect it. In challenging dominant conceptions of male sexuality, Mill also challenged the dominant Victorian conceptions of female sexuality. The double standard allowed and accepted male sexual license while it expected purity and virtue from women. Evidence of female sexual license (i.e., prostitution) was thus taken as evidence of the loss of femininity or womanhood defined in terms of purity and virtue. This interpretation of the female body led to a rather odd and somewhat contradictory position on prostitution. On the one hand, supporters argued that the women who were engaged in prostitution had lost all traces of their femininity or womanhood and were therefore already so degraded that surveillance and examination could not degrade them further. On the other hand, supporters justified the regulation with the argument that such legislation would eventually lead to the reclamation of these women, thereby assuming there was some femininity left to be salvaged. These arguments were further complicated by supporters’ refusal to allow the examination of men. Whereas examination of prostitutes was not seen as degrading, examination of men was. These arguments were not entirely convincing to Mill. While he agreed with supporters that female sexuality could be controlled, that it was not naturally unruly, he also believed that men could control (p.65) their sexuality. And although he agreed that men could be degraded by the examination, he believed that they would be much less degraded than most women: “Men are not lowered in their own eyes as much by exposure of their persons.”53 Mill thus made claims for women’s rights by exposing and disputing the dominant conceptions of male sexuality and the sexual double standard implicit in the Acts. By calling attention to the inequality perpetrated by the legislation, Mill not only challenged Parliament to rethink its public health policy but also challenged his society to rethink dominant conceptions of male and female sexuality.

To be sure, Mill’s defense of women’s rights, like his defense of rights in general, has its problems. While he defends women’s rights and contests dominant conceptions of female inferiority by describing “character” or identity as something that is artificially and socially constituted, Mill also uses essentialized notions of gender identity to achieve the same purposes. This shift between a recognition of the mutability of identity and the naturalization of character leads Mill not only to argue for women’s freedom from state interference but also to support a host of state- and socially-based disciplinary practices that are quite worrisome.54 But it is his understanding of the very porousness of the subject, not a belief in impermeable boundaries and inviolable egos, and his efforts to recognize the concerns of his audience, that leads Mill to champion individual freedom at the same time that he champions both participation in politics and the intervention of the state. If we appreciate the extent to which Mill embraced a modified doctrine of necessity, the extent to which he believed individual character to be the product of artificial cultivation, then we can understand better why he would support some invasive public policies and not others. For example, Mill suggested that military men be watched and examined in order to reduce the likelihood of their transmitting disease to their wives. He also suggested that a law be made to penalize men who were found guilty of such transmission, subjecting them to monetary penalties and allowing their wives the right to divorce them. Such policies, he believed, would have the potential to discourage men from soliciting prostitutes and thereby reduce the threat of venereal disease.

One could say that he supports these policies because they address a clear harm—the transmission of venereal disease. However, the possibility of harm is not enough to explain why Mill supports intervention into men’s lives and yet demands that women be free from state interference. Moreover, harm is always a necessary but not sufficient condition to justify intervention into the lives of others. What is important in my reading (p.66) of Mill is not that he seeks to protect individuals against any and all forms of majoritarian tyranny but, rather, that he seeks to cultivate character in specific ways that enable the development of the capacities for perception and judgment. In fact, one could even read Mill’s defense of women’s privacy rights as an effort, not to set up a sphere of unfettered freedom, but to cultivate women’s character as well. Improvements in women’s morality and health, Mill argued, would be more likely to result from their having the freedom to make health-care decisions for themselves than from their being forced to undergo medical examination and treatment. Arrest, detainment, and forced medical treatment would only degrade women’s character, while “the mere existence of hospitals” and care provided by “benevolent and excellent people” would help turn women from a life of prostitution to one of moral propriety.55 Mill’s defense of women’s liberty, of their right to privacy and freedom from state intervention, while seemingly able to provide a space for women’s flourishing, upon closer examination appears to be intended to improve their character by urging their relocation to different webs of social relations, not abstracting them from these relations altogether.56

There are, of course, dangers in making an argument for rights based on the recognition of intersubjectivity and the fears of your audience—perils that result from linking rights to the cultivation of character. These include a tendency to transform rights into a moral discourse that seeks to distinguish those fit for rights-bearing subjectivity from those unfit for it, and to punish or constrain those deemed unfit. This is certainly a concern raised by some contemporary readings of Mill’s work, and it is an issue I address in greater detail in later chapters.57 But what is important for my argument is to turn attention elsewhere, to shed light on the fact that Millian rights claiming is part of an active, participatory ethos that helps to constitute community and provides the space for the contestation of the arrangements and identity categories constitutive of that very community. Though Mill clearly evinces an anxiety about the detrimental effects that social relations may have on human character, his understanding of what enables human development and how rights can function are, nonetheless, far more complicated than traditional readings of Mill as a liberal individualist would suggest. Human beings do not, he teaches, develop their human capacities in isolation but, rather, through engagement with other individuals. And rights claims are an essential element of that participation. Not only do rights claims reflect the socially situated qualities of individuals, as they reflect the partiality and plurality of perspectives, but (p.67) it is also through the practice of rights claiming, through rights-based political activity, that individual identity is contested and reconstituted and that communities are formed. With John Stuart Mill, then, we learn that instability and mutability at the level of identity, while anxiety producing, can also be a source of democratic political promise.

Reading Mill as advancing an understanding of rights as claims of persuasion—as perspectival claims that also acknowledge the perspectives of others and their capacities to make judgments—helps us recognize that this practice actually allows for the contestation and creation, rather than simply the solidification, of different understandings of individual subjectivity and democratic community. It also reminds us that rights themselves are not things we have that are independent of our relationships with others, but are instead the product of contestation and practices of intersubjective meaning making. Their very meaning and power are not discovered philosophically nor given by human nature but are, instead, created through the process of civic engagement, debate, and deliberation. Moreover, understanding rights and rights claiming in these ways allows us to rethink or relocate what some describe as the “paradox of rights.” The paradox of rights is not that rights claims work sometimes and fail sometimes, nor that they enable certain possibilities while constraining others. Instead, the paradox of rights is that we want the practice of making rights claims to end political debate, but at the same time we must recognize that their meaning and power actually derive from ongoing political engagement. Recognizing rights claiming as a practice of persuasion means embracing the fact that rights claiming is neither the representation of an absolute truth nor an activity whose felicity can be guaranteed. Instead, rights claiming is the activity of making equivocal utterances and of presenting perspectives that may or may not be embraced by the community to which they are made. If Mill’s work reveals that rights claiming is not a trumping but, rather, a persuasive activity, it reminds us, then, of the importance of ongoing political engagement.


(1) . To be clear, I am not arguing that critics are wholly wrong to suggest that conceiving of rights as trumps has one or more of these problems but, rather, that these issues are not necessarily attributable to every theory or practice in which a right is conceived of as a trump and, perhaps more important, do not fully account for all that is done in and by making a rights claim.

(2) . I discuss and challenge these readings of Arendt and Mill at points later in this chapter. For Arendt’s critique of rights, see in particular “The Decline of the Nation-State and the End of the Rights of Man” in On the Origins of Totalitarianism (1958b). For Mill’s defense of rights, see, in particular, On Liberty (1991b).

(3) . Garsten (2006) finds elements of a politics of persuasion in thinkers such as Aristotle and Cicero. On persuasion as a practice central to deliberative democracy, see, for example, Fung (2005).

(4) . Allen (2004), 61.

(5) . Arendt (2005b), 15.

(6) . Ibid., 7.

(7) . Ibid., 14.

(8) . Ibid.

(9) . Arendt (1958a), 184.

(10) . Arendt (2005a), 129.

(11) . Arendt (1958a), 222.

(12) . Arendt (2005a), 93.

(13) . Arendt (1958b), 292.

(14) . My interpretation of Arendt’s discussion of rights in On Totalitarianism differs from those that suggest that her designation of the rights of the citizen as real rights and the rights of man as abstractions means that she was endorsing a nation-state–based understanding of rights whereby the rights of the citizen are the same as the rights of man or rejecting rights all together. See, for example, Rancière (2004). On my reading, an Arendtian understanding of rights as political claims and rights claiming as a practice of persuasion may have more in common with a Rancièrian approach to rights than his work acknowledges.

(15) . Zerilli (2005), 134.

(16) . I am not suggesting that rights do not exist in some form or have a particular force. Indeed, they are often legal artifacts that constrain as well as enable us to live in particular ways. My point is that their status as legal artifacts does not tell us all there is to know about the character of rights or the effects of rights claiming.

(p.131) (17) . Arendt does not reject truth altogether. She does acknowledge that there are factual truths which encompass information such as which country invades another to start a war. In “Truth and Politics,” Arendt distinguishes between rational and factual truths. Rational truths are those that, like mathematical truths, are self-evident and can be discovered in isolation from others. Factual truths consist of information such as when Germany invaded Berlin and which country fired the first shots. Factual truths have a contingent character; they are not self-evident because they could have been otherwise (1968b, 249–51).

Arendt’s position, then, is not to discount truth altogether nor encourage “propagandist lying” (Canovan 1974, 113). Rather, Arendt argues that truth, objectivity, and absolute standards should be denied the status of supreme value or absolute necessity (Canovan 1974, 113). Indeed, Arendt wants us to understand that truth threatens political action and human connectedness which are “some of the most essential characteristics of human life” (Arendt 1958b, 297). By foreclosing the possibility of acting in concert and forming connections with others, truth claims and truth seekers produce a life that “is literally dead to the world; it has ceased to be a human life because it is no longer lived among men” (1958a, 176). See also Villa (2000) for a helpful overview of Arendt’s thinking.

(18) . Arendt (2005b), 14.

(19) . Zerilli (2005), 144.

(20) . Garsten (2006), 210.

(21) . For a good discussion of the liberal tradition, its commitment to a particular kind of individual freedom, and the place of Mill’s writings within that tradition, see the following: Berlin (1978), DiStefano (1991), Hobhouse (2004), and Ryan (1998).

(22) . Mill (1991b), 14.

(23) . See Taylor (1979).

(24) . Mill (1991b), 15.

(25) . Mill (1991d), 190.

(26) . Mill (1991c), 544.

(27) . Mill (1963b), 837.

(28) . Ibid.

(29) . Mill (1952), 191.

(30) . Mill (1963a), 469.

(31) . Mill (1963b), 841.

(32) . Ibid, 839.

(33) . Mill offers a similar argument in his sharp criticism of Jeremy Bentham. Mill argues that Bentham’s theory of human beings as motivated primarily by selfishness and self-interest at all times and in all societies fails to recognize that the “springs” and “motives” of our actions are “innumerable” and diverse, and that human nature is profoundly complex. Only the most vulgar eye, Mill argues, would “assume,” as Bentham does, “that mankind are alike in all times and all (p.132) places, that they have the same wants and are exposed to the same evils” (1965, 259). Only the poorest analyst of human nature would commit such an intellectual and moral error, obscuring all the diversity and unpredictability of human character.

(34) . Mill (1963b), 840–41.

(35) . Mill (1991d).

(36) . Ibid., 188–89.

(37) . See Mill (1991a) for a discussion of citizen participation and for a robust defense of Mill as a champion of the democratic practice of deliberation, see Urbinati (2002).

(38) . This is not to deny that one of the most important social benefits of freedom of expression is, for Mill, the advancement toward “truth.” However, I do not want to overemphasize the narrative of progress implicit in Mill’s argument. Instead, I want to highlight the fact that Mill values debate and discussion for the effects it has on the character of individuals rather than on the quantity of truth present in a society. For even if society reaches a point where it has replaced all falsehoods with truths, Mill would still defend the importance of freedom of expression.

(39) . Mill (1991b), 23.

(40) . Waldron (1987), 414.

(41) . Mill (1991b), 54.

(42) . Ibid, 53.

(43) . Mill (1991d), 152.

(44) . Mill (1991b), 38–39.

(45) . Ibid, 59.

(46) . See Garsten (2006) for a good discussion of the difference between persuasion and manipulation.

(47) . Mill (1991a), 240.

(48) . Urbinati (2002), 53.

(49) . Mill (1991c), 493

(50) . Garsten (2006), 126.

(51) . Mill (1963c), 360.

(52) . Mill (1963c), 1688.

(53) . Mill (1963c), 356.

(54) . See Shanley (1998) for a good discussion of the tension in Mill’s work that comes from his inability to fully embrace the idea of the artificiality of women’s “nature.”

(55) . Mill (1963c), 365.

(56) . For social histories of the issues raised by the Contagious Diseases Acts, see, for example, Laqueur (1990), McHugh (1980), Spongberg (1997), and Walkowitz (1991).

(57) . See, for example, Passavant (2002) and Zerilli (1994) for concerns about the implications of Mill’s defense of women’s rights.