by Bronwen Morgan (ed). Hampshire, England, and Burlington, Vermont: Ashgate Publishing, 2007. 234pp. Hardback. £55.00/$99.95. ISBN: 9780754649823.
Reviewed by Colin Provost, School of Public Policy, University College London. Email: c.provost [at] ucl.ac.uk.
THE INTERSECTION OF RIGHTS AND REGULATION is a thought-provoking edited volume, in which the authors explore how the concepts of rights and regulation overlap, both in the social world and in the social science literature. The book’s chapters are written from a variety of different perspectives, as the book’s editor, Bronwen Morgan, brings together scholars from anthropology, geography, law, political science and sociology. Readers of this book will find that each of the chapters makes contributions to the literatures on rights, regulation or both, but at the same time, readers looking for a core argument or a narrow set of findings will be somewhat frustrated.
Morgan, in the introductory chapter, lays out one of the book’s major premises by stating that rights and regulation are typically seen as being in opposition to each other. For example, government regulation infringes on property rights by forcing businesses to adopt health and safety standards in the manufacturing process. However, Morgan questions the universality of this opposition, noting that regulatory regimes can often enshrine and support rights claims. Additionally, even when rights and regulation are in opposition to each other, there are additional institutional and policy factors that mediate the relationship between the two. Indeed, that the relationship between rights and regulation is a complex and dynamic one appears to be the main point of the book, and Morgan raises a series of empirical questions in the introductory chapter as a means towards reaching this realization.
What follows are a group of well-written, yet largely descriptive chapters that address a variety of different issues concerning rights and/or regulation. The social contexts studied range from federal regulatory agencies in the United States, to the World Bank and United Nations, to urban political environments, to online internet communities. The chapters are divided into three sections to address first, the “contrasting forms and logics” of rights and regulation, second, the “complementarities” between rights and regulation, and third, “hybrid dialectics” between rights and regulation. Each chapter presents its own set of findings, but synthesizing them into a larger, coherent set of observations for the book proves to be a formidable task.
Orly Lobel’s chapter on the Equal Employment Opportunity Commission (EEOC) and the Occupational Safety and Hazard Administration (OSHA) in the United States (Chapter Two) right away presents the allegedly contrasting forms and logics, yet also shows how [*769] limiting exclusive frameworks of rights or regulation can be. Lobel claims that the EEOC has been guided by an adjudicative process which serves to uphold the civil rights of individual workers, while OSHA has sought to ensure worker safety and health through a process of administrative rulemaking. Arguing that each agency has been constrained by the framework in which it has operated, she shows that the strict, command-and-control style exhibited by OSHA has often been costly and ineffective, while EEOC’s focus on particular cases has drawn attention away from encouraging a broader culture of equal rights. Lobel suggests that policy makers in each setting are realizing the limits of each framework, as OSHA strives for a more conciliatory approach to regulating business, while EEOC, is starting to adopt a more regulatory approach in order to foster a culture of equal rights in the workplace, rather than simply addressing one case of discrimination at a time.
Lobel essentially demonstrates that both agencies can benefit more by exhibiting greater levels of cooperation – by working with business through education and incentives. Each agency’s trajectory is well illustrated by the author, but the conclusions are not particularly new. Lobel cites literature showing that the EEOC could benefit from broader rule-making powers in addition to its adjudicative duties, while the creation of regulatory negotiations in US federal agencies in the early 1980s was explicitly designed to allow a more cooperative framework for rulemaking. Indeed, on the latter point, Morgan presents the same contrast in the introductory chapter, through her discussion of Bardach and Kagan’s “regulatory unreasonableness” in the United States (1982) and Hawkins’ (2002) “law as a last resort” in the United Kingdom.
Tola Amodu’s study of regulation and land-use planning in the United Kingdom from 1909 to 1943 (Chapter Four) contrasts well with the regulatory unreasonableness allegedly displayed by American agencies like OSHA. Amodu argues that negotiations over property rights in England and Wales were shaped over time, as planning authorities sought to embed into private contracts regulatory mechanisms that would achieve collective policy goals. Amodu demonstrates that cooperation in negotiations between landowners and planning authorities helped to establish a regulatory framework for land use, one that bound successive generations of landowners. Ultimately, this shows us how regulation helped to shape property rights, without significantly infringing upon them. Amodu’s story is well-written and theoretically solid, but it repeats the main point too often without incorporating empirical examples that illustrate the evolution of planning agreements in one town or county over time.
Backtracking slightly to Chapter Three, Amanda Baumle introduces us to what gradually becomes a major theme in the rest of the volume, the use of discourse to shape discussions about rights – in this case, how the use of legal discourse can mobilize claims for rights in gender discrimination. Baumle cites Quinn (2000) who argues that failing to use legal terminology to describe gender discrimination or sexual harassment renders the law less useful in seeking remedies for those harms. She then [*770] employs internet ethnography to observe the discourse of an online community of associate attorneys in the United States, called the “Greedy Associates.” Relying on Quinn (2000) to a large extent, Baumle argues that the attorneys can effectively mobilize to address harms when they occur, by determining what activities constitute legal infractions and using legal terminology to label them as such. She presents discussion threads from her dataset which includes six years of internet posts and observes a heightened use of legal terminology to label wrongdoing. Baumle suggests that the discussions could mobilize behavior, although she has no evidence for this actually occurring. However, she succeeds in implicitly highlighting problems with the notion of absolutely inviolable rights, particularly in gender discrimination – problems such as simply identifying whether discrimination has actually taken place legally, to say nothing of the concerns an attorney can have for their career, if they file a complaint against a superior.
Anders Walker then introduces the second section of the book, “Complementarities between Rights and Regulation,” with two case studies of rights in the context of local politics in the United States (Chapter Five). Walker examines school integration in North Carolina school districts after 1954, as well as the issue of death penalty reform in New York City in the 1960s and shows that the difficulties in implementing rights can also make them less than absolute. For example, open defiance in the South of the Supreme Court’s BROWN v. BOARD OF EDUCATION decision hindered blacks in their pursuit of integrated education, leading North Carolina Governor Luther Hodges to tell local school districts that they could close public school systems altogether and parents would have the opportunity to build their own private schools. As Walker points out, this provided a safety valve for extremist parents, yet it also substantially raised the costs of defying integration for all parents. As a result, integration was more likely to occur and the rights of blacks to public education were enhanced. Similarly, in New York, blurring the legal definition of first and second-degree murder led to more capital punishment convictions and a weakening of the rights of criminal defendants, yet support for capital punishment was still quite strong. Rather than abolish the death penalty, Herbert Wechsler, who advised the commission to revise New York’s Penal Law, recommended separating criminal trials into conviction and sentencing phases, so that juries could decide for themselves whether the death penalty was truly warranted. Thus, such a recommendation would abide by popular support for capital punishment, but also place the burden of distributing such punishment to the citizens themselves. Walker’s cases provide fascinating examples of entrepreneurial policy makers who sought middle-of-the-road measures in order to prevent majoritarian intrusions upon particular sets of rights. The lack of any real theoretical framework here into which to place these cases is a bit disappointing, but overall, Walker nicely illustrates how some policy makers must become creative in order to uphold certain rights.
In Chapter Six, Galit Sarfaty demonstrates convincingly how different professional orientations at the World Bank led to competing frameworks of [*771] human rights. Sarfaty analyzes the instrumental framework, primarily employed by economists, which emphasizes upholding human rights in order to achieve development goals, as well as the intrinsic framework, used by lawyers and those in the social development unit. This framework dictates strong pursuit of human rights as intrinsic goods. Sarfaty provides an excellent example of how these differences actually matter, by examining two separate investment projects related to HIV/AIDS. In one project, the creators employ an intrinsic approach and conclude that a major goal should be to reduce discrimination and stigma attached to the disease. In the other project, a cost-benefit analysis was conducted and the creators concluded that funds would be spent more wisely on other methods of prevention. The importance of discourse is once again raised in this chapter, as we see how professional orientation shapes not only the thought, but also the language of human rights, which in turn, shapes the actual content of packages designed to improve the state of human rights.
In the final chapter on complementarities, Erik Larson writes about the emergence of indigenous peoples’ rights as a basic set of human rights by which nation-states must abide. Because indigenous rights have emerged in international organizations, Larson presents this case as a contrast to world polity theory which states that “the diffusion of a global culture shapes the behavior of nation-states and individuals.” Larson’s case is one of agenda setting, as he illustrates how indigenous peoples created organized movements, which succeeded in enshrining their rights into international agreements, thereby obliging nation-states to respect these new rights conventions. The story and examples presented are both cogent, yet readers who do not have a background in international relations, such as this reader, may find the chapter slightly muddled theoretically. World polity theory, the theory to which Larson refers as his benchmark, appears a bit confusing, as it is not clear how “global culture” shapes the behavior of nation-states and individuals without the reverse being true, to some degree. That said, global culture, appears to be so broad and all-encompassing, that it is not clear why the emergence of indigenous peoples’ rights would not also fit into this theory, however flawed it may be. Despite this criticism, Larson does fit this story nicely into the broader theme of persuasion, via discourse and agenda-setting, by demonstrating how collective peoples utilize international institutions to get nation-states to abide by new human rights laws.
The book’s final section begins with Laam Hae’s chapter on regulation of dance clubs in New York City as a means towards enhancing “quality of life” (Chapter Eight). Hae recounts how dance clubs were tolerated in New York City for many years, despite their alleged association with drugs and prostitution, but when hard times hit in the late 1970s, city governments abandoned notions of Keynesian economics and saw the growth of business within the city as the answer to the economic problems. The overarching goal then became attracting business to the city and eliminating drugs, prostitution and homelessness from potential centers of commerce. Thus, the Koch Administration altered [*772] zoning laws to make it increasingly difficult for aspiring dance club owners to get licenses and for existing owners to maintain licenses. Mayor Rudy Giuliani took this a step further by using nuisance laws to monitor and, when necessary, raid clubs, all in the name of increased quality of life.
Hae illustrates well a case in which one set of rights – the right to own, run and enjoy dance clubs – lost out to another, the right to a good quality of life. Of course, it is highly controversial to claim that dance clubs somehow decrease the quality of life in a city, yet this again shows the power of discourse. By framing the desire to bring thriving business into a city as a “quality of life” issue, successive mayors of New York were able to drive out particular types of businesses, while attracting others. This case also presents a considerably different use of regulatory instruments from those illustrated in Lobel’s and Amodu’s chapters. For Lobel and Amodu, regulation is used to correct market failures, such as negative externalities or information asymmetries, but in this case, the use of regulation appears more nakedly political, designed to benefit one group at the expense of another.
In Chapter Nine, the book returns emphatically to the subject of rights discourse, as Jeffrey Dudas analyzes language employed by the “New Right” in the United States to claim that zealous pursuit of minorities’ rights have infringed upon the rights of white, blue-collar Americans. Again, we are confronted with the question of what rights are and how discourse shapes their definition. Dudas quotes William F. Buckley, in saying that the definition of “civil rights” has been distorted to justify claims to a multitude of privileges and resources. Dudas then cites Barry Goldwater, who argued that such rights claims resulted in an explosion of new social programs in the federal government (Goldwater 1970). These programs then caused resentment among many “forgotten Americans” who later became Reagan Democrats. Ultimately, this conservative rights discourse seeks to bring shame to minorities making rights claims, yet at the same time, distracts the forgotten Americans from the root causes of their social and economic grievances. Dudas presents little evidence on the latter claim, but in support of the first claim, he offers a wealth of written and rhetorical evidence, from scholars and politicians, ably demonstrating the salience of rhetoric and discourse in rights formation.
In Chapter Ten, Sundhya Pahuja concludes the book by discussing human rights in the context of development, thus returning to the subject broached by Galit Sarfaty in Chapter Six: whether human rights are intrinsic or instrumental towards economic development and growth. Pahuja walks us through the work of Hernando de Soto (2000) and Amartya Sen (1999) in creating her logical pathways. De Soto argues that poor people often remain poor because of corrupt political institutions and thus, strong legal institutions and property rights are necessary to facilitate development. Sen, on the other hand, argues that basic freedoms, such as civil rights, are both intrinsic and instrumental to development. Pahuja argues that both theories make rights subservient to the achievement of economic growth, which [*773] in turn negates the political quality of rights and thus hinders the mobilization for new rights from outside the law. While Pahuja eloquently makes clear her belief that instrumental rights are problematic, she never gives the reader a sense of what an intrinsic rights framework looks like and how it would function in development policy. Sarfaty’s example from Chapter Six of intrinsic human rights at the World Bank provides an appropriate complement here, and Pahuja might have cited Sarfaty’s chapter in order to round out her argument.
Overall, THE INTERSECTION OF RIGHTS AND REGULATION is a reasonably well-presented edited volume that contains many intriguing cases of how rights and regulation relate to each other. There are several overlapping themes that the reader can infer from the essays, most notably, that rights and regulation are not always necessarily contradictory, and that rights, no matter how popular or widely claimed, are hardly ever absolute. As the power of discourse is demonstrated repeatedly, rights are often whatever powerful groups want them to be. However, readers who are looking for one overall coherent argument will search in vain. Indeed, the book’s somewhat vague subheading, NEW DIRECTIONS IN SOCIOLEGAL SCHOLARSHIP, indicates that there is not one big take-away point, but rather several smaller ones. This, in no way, detracts from the contributions of the collection, and, as the reader discovers progressing through it, the very nature of the subjects fails to lend itself to one all-encompassing, theoretical argument. If willing to tolerate the lack of an overall, unifying theme, the reader will find a substantively and methodologically diverse volume of studies that makes several worthy contributions to the respective literatures on rights and regulation.
Bardach, Eugene, and Robert A. Kagan. 1982. GOING BY THE BOOK: THE PROBLEM OF REGULATORY UNREASONABLENESS. Philadelphia: Temple University Press.
De Soto, Hernando. 2000. THE MYSTERY OF CAPITAL: WHY CAPITALISM TRIUMPHS IN THE WEST AND FAILS EVERYWHERE ELSE. London: Black Swan.
Goldwater, Barry. 1970. THE CONSCIENCE OF A MAJORITY. New Jersey: Prentice Hall.
Hawkins, Keith. 2003. LAW AS A LAST RESORT: PROSECUTION DECISION-MAKING IN A REGULATORY AGENCY. Oxford: Oxford University Press.
Quinn, Beth A. 2000. “The Paradox of Complaining: Law, Humor and Harassment in the Everyday Work World,” LAW AND SOCIAL INQUIRY, 25: 1151-1185.
Sen, Amartya. 1999. DEVELOPMENT AS FREEDOM. Oxford: Oxford University Press.
© Copyright 2008 by the author, Colin Provost.