Visionary Science, Ethics, Law and Action in the Public Interest

Creating a Path to the Future: A Rights Agenda

Carolyn Raffensperger

By Carolyn Raffensperger

Question: Could the concept of rights serve as a unifying theme for a progressive agenda?

The Golden Rule and the sacredness of all life unify the environmental and social justice movements, according to Paul Hawken in his book, Blessed Unrest. These are ethical precepts that stand in contrast to the dominant political theory that free market economics is the standard by which we measure the success of law and public policy. The environmental and social justice movements have arisen in large part to counter the damage to the Earth and to people from pursuing a free market agenda.

“Free market economics” or free market agenda” is shorthand for the proposition that economics is the exclusive measure of value and that corporations should be given free rein to use the planet and people in order to make profits for their shareholders and CEOs. Inequities, pollution, and all the other consequences of this agenda are worth it because the market will adjust and correct for flaws. This view is expressed and reinforced over and over again. For example, The Guardian ran a story about the large bonuses in that banking industry and contains this stunning passage: “Lord Griffiths, vice-chairman of Goldman Sachs International and a former adviser to Margaret Thatcher, said banks should not be ashamed of rewarding their staff. Speaking to an audience at St Paul’s Cathedral in London about morality in the marketplace last night, Griffiths said the British public should ‘tolerate the inequality as a way to achieve greater prosperity for all’.”

A corollary of the free market agenda is that growth is essential for a healthy economy. This means that consumer protection, fair wages, regulations, or anything that gets in the way of growth and profits blocks the free market and should be minimized or eliminated.

Free market economic policies did not arise spontaneously but emerged out of a series of historical events and the work of intellectuals who created an integrated theoretical and strategic framework designed to suppress antiwar, civil rights and environmental efforts and promote a free market ideology. The most influential of these is the Powell Memo written by Lewis Powell for the Chamber of Commerce in 1971. Powell opens his memo with this description: “No thoughtful person can question that the American economic system is under broad attack. This varies in scope, intensity, in the techniques employed, and in the level of visibility.”

Powell made the argument that freedom was the essential foundation of the United States and that economic freedom was the basis for other freedoms. The freedoms Powell identified as essential were “private ownership, private profit, labor unions, collective bargaining, consumer choice, and a market economy in which competition largely determines price, quality and variety of the goods and services provided the consumer.” Powell was particularly critical of social justice and environmental groups and activists, calling out a few for particular criticism, most notably Ralph Nader, since these groups by their very nature interfered with the free market thereby impinging on the economic freedoms Powell thought were essential to America.

The Powell memo was was ultimately translated into a legislative agenda crafted by Newt Gingrich and the Republican Party and put forward in the 1994 Contract with America. The Contract was deliberately constructed to undermine civil rights, civil liberties, and environmental regulation and aggressively support and protect business.

Meanwhile, social justice and environmental groups have grown in number and sophistication. They have won many important victories. But the social ills and environmental threats are increasing in spite of the diligent and heroic efforts of civil society. Global warming, the number of black men in prison, the increase in chronic diseases in humans, child soldiers, the loss of pollinators, immigration raids, women conscripted as sex slaves, are all significant diagnostics that tell us that the social fabric and the web of the natural world continue to unravel. Note that each item on the list above is discrete and seemingly independent of the others. They are not. They are all symptoms of the problems of the free market agenda. The question is whether we can see a unifying pattern and context that provides a path to solutions.

In an essay on a new economic framework, Otto Scharmer says, “[t]he crisis conversation is happening all over the place. What’s interesting is that each of the … crises has its own discourse, its own NGO (each working with a single-issue mindset), conferences, journals, websites, funding mechanisms, programs, and so forth. While all these single-issue groups of change-makers engage in well-intentioned work, there are two missing pieces: one, a discourse across all these silos about how these issues are interconnected, and two, a discourse about the systemic root causes that continuously reproduce the whole cluster of crises mentioned above.”

It’s time to fill in these missing pieces. If Hawken is right that the Golden Rule and the sacredness of all life unify environmental and social justice groups, the question is whether they can be translated into policy and legal threads that go beyond the aspirational and connect all the silos.

Why law and policy? One definition of “law” is that it is the set of rules a community has agreed to live by. Essentially law, either made by legislators or the courts, is an expression of the minimum ethical rules that allow us to live together. We’ve based our law on free market economics but that is no longer an adequate expression of the two ethical principles Hawken describes. Our legal rules guarantee that corporations have more rights than ecosystems; we have a stronger right to own a gun than to have clean water; industries are allowed to poison children if they have done a reasonable cost benefit analysis. This is wrong.

There is one central set of rules that can change the game so that the game reflects our ethics. That set of rules is organized on the basis of rights. Rights take moral standards and translate them into a legal mandate. We have a venerable history of expanding rights, from the Magna Carta to the 1948 Declaration of Human Rights, that we can use to create a unified progressive political agenda for the 21st century. A rights approach takes justice and environmental issues out of the narrow box of the free market. and since the concept of rights has a different logic and different rules from free market economic agenda, it provides a better chance for long term protection of the Earth and more justice between people.

For instance, environmental law is almost exclusively a species of the free market law described above. The regulations applying environmental law are cost-benefit analysis and risk assessment. These regulatory tools weigh the environmental or public health benefits against the economy. But rights law, especially the tradition of human rights, stands outside economics. We do not ask what the value of slavery is to the economy and then regulate slavery by, say, requiring owners to treat slaves a little better. Instead, we say it is wrong and illegal. We do not apply a cost-benefit test to slaves. There are other things like environmental issues that should be moved out of the rules of the free market and into the logic and rules of rights.

We can start with the 1948 Universal Declaration of Human Rights. The Declaration lays out fundamental rights that attach to every human being. It is not law but it has the force of law since most countries sanction any country that regularly violates the rights defined in the Declaration. But this hugely influential document is outdated and lacks some rights that are essential in the 21st century: there is no right to a clean and healthy environment. Even the handful of U.S. state constitutions that identify an environmental right do not make it an inalienable right. A U.S. citizen has a stronger right to own a gun than they have to breathe clean air.

The list of rights could go far beyond the individual right to a clean environment. We can extend this right to future generations. The rapidly deteriorating atmosphere and resulting climate change is driving visionary legal work that would assign responsibility for safeguarding the rights of future generations.

There are many other rights that could be fully embodied as a matter of policy and law, particularly the rights of children, elders, indigenous people, women and gay and lesbian people. Nor have we fully developed a rights law that addresses poverty, racism, incarceration, the death penalty, or immigration. But we can.

Why and How

If the concept of rights is a useful organizing principle, it suggests a map of work. Here are seven tasks.

1) Reframe the political debate and reclaim the language of rights from the narrow confines of the right to own guns and property, which now occupy much of the political space.
2) Build in corresponding notions of duty and responsibility to balance the language of rights.
3) Develop new political ideas and language that are corollaries of the rights agenda. For instance, it may be time to create a new legal standard, the respectful person standard to replace the reasonable person standard in certain kinds of cases.
4) Reassert the constitutional protection of rights even in the face of majority rule.
5) Integrate the legitimate rights claimed by conservatives.
6) Articulate a theory of government that can provide a compelling rationale for government policy, size, funding and action.
7) Align tactics and strategy with the core philosophy.

Principles Derived from Rights

In order to unify the social justice and environmental movements we need to find common principles that can be used to draft a progressive agenda analogous to the Republicans’ Contract With America. An example of one such principle might be the precautionary principle, which directs decision-makers to prevent harm by taking precautionary action in the face of scientific uncertainty and the likelihood of harm. Preventing harm rather than fixing it later is probably a shared principle across many of the social justice domains.

Many of these principles will be found at the intersections of issue domains. For instance, what is at the intersection of women’s rights and the right to a clean environment? Or community rights and those of elders and future generations?

In sum it is time to challenge the outdated legal norms predicated on the free market and individual rights to property. It is time to expand and deepen our ethical moorings by creating a policy framework suitable for the 21st century. It is time to create a unified political agenda and strategy built on the core concept of rights.