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5— Rights and Reason
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An Adversarial Language: The Awakening

I want to try out some of these propositions in Kate Chopin's The Awakening (1899), a novel that in its complex play of personal griev-


ance and personal indulgence, in its portrayal of moral subjectivism and delineation of its excess, would seem not only to exemplify a rights-based model of justice but also, in light of its outcome, to serve as that model's most devastating, if most cherishing, critic.[29] Published just nine years after the landmark essay by Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy" (an essay arguing for the "right of the individual to be let alone "),[30] and written moreover during a period when the substantive rights of the Fourteenth Amendment had become an interpretive minefield, The Awakening is a salient example of what I have tried to call a "historical semantics," a textual field rich with accumulated resonances. Certainly, the language of rights is everywhere observable in the book. Indeed, in the very opening scene, we see a rather bizarre instance of its usage, a usage occasioned by a dispute between a man and two birds.

The man in question is Mr. Pontellier, who is trying to read the newspaper. He is prevented from doing so by a talking parrot and a whistling mockingbird, who are making nuisances of themselves. What follows is an account of the respective claims of the man and the birds, couched in the language of jurisprudence with the rights and privileges of each party specified and enumerated: "The parrot and the mocking bird were the property of Madame Lebrun, and they had the right to make all the noise they wished. Mr. Pontellier had the privilege of quitting their society when they ceased to be entertaining."[31]

The parrot and the mockingbird would be surprised to learn that they have a "right" to make noise, and Mr. Pontellier, on his part, would be equally surprised to learn that it is a "privilege" to escape from birds that are dinning into his ears. If the language of rights is conspicuously present here, it is also conspicuously present in quotation marks, a dubious honor that, I might add, will not be its last in this novel. Indeed, the concluding pages of The Awakening , like the opening scene, also bring the language of rights into a kind of dubious prominence, for this is the very language Edna Pontellier invokes the night before she drowns herself, when she tries to make sense of her life and justify her behavior.

"I'm not going to be forced into doing things," Edna tells Dr. Mandelet, her well-intentioned but largely unhelpful counselor. "I don't want to go abroad. I want to be left alone. Nobody has any right—except children, perhaps—and even then, it seems to me—or it did


seem—" The sentence is left tantalizingly unfinished, for Edna, sensing the "incoherency of her thoughts, [has] stopped abruptly" (147). Perhaps, given the claim she is making, this is not a sentence she can afford to finish. Like Warren and Brandeis, Edna wants privacy, she "want[s] to be left alone." And, for her as for them, it seems natural that this desire should be expressed in terms of a fundamental entitlement, in terms of a "right" which is not to be denied her. What is striking about Edna's language of rights, however, and what makes it immediately problematic, is that in her particular syntax, the right holder turns out to be a nonsubject, a nonentity, a "nobody [who] has any right."

Seen in isolation, Edna's statement must seem more than a little puzzling, because, far from being something that "nobody" has, rights are usually thought of as something that everybody has. Still, the construction is not as strange as it might appear, for Edna, true to the language of rights, is operating here out of an adversarial grammar, one that, in assuming a constitutive opposition between persons, must assume as well a constitutive opposition between two kinds of rights: rights possessed by oneself and rights possessed by others. Since the latter is necessarily a threat to the former, its consignment to a "nobody" is likewise necessary, the negative attribution here being a syntactic effect (and a necessary effect) of Edna's language of rights.

And so it is not exactly a contradiction that Edna should believe "nobody has any right," while she fills her head with thoughts" "concerning the eternal rights of women" (86), as her husband complains. Mr. Pontellier is exaggerating, of course, because what Edna wants is actually something more personal: not eternal rights for women but a particular right for herself, a right to be "left alone" and to "harbor thoughts and emotions" which "belonged to her and were her own, and [which] she entertained the conviction that she had a right to" (62).

Such a preoccupation with "rights" is not altogether fortuitous. For even though the novel does not elaborate on this point, living as Edna did (and as Chopin herself did), as a married woman in turn-of-the-century Louisiana, the catalog of rights denied her was indeed staggering. Not only was she denied the right to vote, but under the laws of Louisiana (based upon the Napoleonic Code) she was also denied the right to contract without her husband's consent, the right to public


office, the right to legal residence, the right to institute a lawsuit, the right to equal partnership in the family's "community property," and the right to equal guardianship of her children.[32] Unlike Mr. Pontellier, whose rights are extensive and absolute, and who, moreover, has just been caught looking at his wife "as one looks at a valuable piece of personal property" (3), Edna's rights are highly limited, highly conditional. It is against that unspoken deprivation that we must see her attempt to imagine for herself one ultimate sphere of entitlement, a space rightfully her own, claimable by "nobody" else. And it is a further sign of that deprivation that she can do so only by retreating into herself, only by taking up residence inside her own "thoughts and emotions," a kind of mental property which "belonged to her and were her own" (62).

For Edna, then, the exercise of rights can come only from a particular account of herself, an account of her inviolate personhood, imagined as a sphere of exclusive possession. She is on good authority here. Warren and Brandeis, in "The Right to Privacy" (1890), had offered a theory about just such inviolate personhood, defined as exclusive possession and defined, most specifically, by invoking the language of rights. Human progress, Warren and Brandeis argued, had enlarged the ranks of existing rights, adding to their numbers an important newcomer, the "right to one's personality" the "right to be let alone." This new right bore some resemblance to traditional property rights, Warren and Brandeis said, for in it there "inheres the quality of being owned or possessed." But in order to acknowledge the unprecedented scope of this new right, it must be defined as a right that exceeded the traditional "narrow grounds of protection to property," a right whose jurisdiction must now extend to all "thoughts, emotions, and sensations." In short, the right to an "inviolate personality" must be seen as the broadest and most inclusive of property rights; it must "comprise every form of possession—intangible as well as tangible," so that its sphere of protection would be equally broad and inclusive:[33] "The right of property in its widest sense, including all possession, including all rights and privileges, and hence embracing the right to an inviolate personality, affords alone that broad basis upon which the protection which the individual demands can be rested."[34]

In defining the "right to one's personality" as a property right—a right whose protectability is vested in the exclusivity of its pos-


session—Warren and Brandeis not only looked forward to a crucial development in twentieth-century constitutional law,[35] they also brought to the fore a long-standing presumption in the theory of rights. In the Second Treatise , for example, Locke had also understood the citizen's political right to be a property right, a property right so broadly defined as to afford the broadest scope for immunity:

the supreme power cannot take from any man part of his property without his own consent; for the preservation of property being the end of government and that for which men enter into society, it necessarily supposes and requires that the people should have property. . . . Men, therefore, in society having property, they have such right to the goods which by the law of the community are theirs, that nobody has a right to take their substance or any part of it from them without their own consent.[36]

Property rights, then, were the most basic of rights. And since Locke also defined "property" to comprise things both tangible and intangible—since he had famously declared that "every man has a property in his own person; this nobody has any right to but himself"[37] —for him, property rights ended up encompassing the full spectrum of rights. This Lockean "proprietary" thinking not only imagined all rights as ownable objects, it also put a special emphasis on their exclusiveness, on their possession by "nobody but himself."[38] In the twentieth century, this line of thinking would lead Joel Feinberg to come up with a striking metaphor for the ownability (as well as utility) of rights. Rights, he says, "are especially sturdy objects to 'stand upon,' a most useful sort of moral furniture."[39]

But if rights are a kind of furniture, the possession of such furniture, even the moral variety, would seem to take some work. Furniture is not something one is born with, it is something one has to acquire. And so, even though in theory rights are supposed to be humanly immanent, native and universal to all of us, in practice they turn out to be things one has to seize from others: they have to be "claimed, demanded, affirmed, insisted upon."[40] The acquisition is strenuous, as Richard Flathman has humorously pointed out: "It is not only common but generally thought unexceptionable for [right-holders] to claim, maintain, assert, demand, and insist upon their rights. It is rarely taken amiss, indeed often applauded, if they do so forcefully, staunchly, resolutely, boldly, and even zealously."[41]


A right so forcefully, staunchly, resolutely, boldly, and zealously claimed must be felt, from the other side, as a highly unsubtle pressure. Theorists from Bentham to Hohfeld thus speak of a "correlativity" activated by the concepts of rights, the complementary genesis of a positive and a negative term, so that whenever there exists a right holder entitled to a benefit, there must also exist a complying party obligated to yield that benefit.[42] Between the one with something to claim and the one with something to surrender, there would seem to be an antagonism at once structural and inevitable.

Indeed, given the proprietary conception of rights—given its imagined status not only as something owned but as something owned in defiance of others and to the exclusion of others—it is hardly surprising that the language of rights should be an adversarial language, haunted by a Hobbesian vision, "a condition of Warre of every one against every one." "In such a condition," Hobbes said, "every one is governed by his own Reason," and "every man has a Right to every thing; even to one anothers body. And therefore, as long as this naturall Right of every man to every thing endureth, there can be no security to any man, (how strong or wise soever he be), of living out the time, which Nature alloweth men to live."[43] It is this natural "Warre of every one against every one" that led Warren and Brandeis to speak of privacy rights as more fundamental than those rights "arising from contract or from special trust," because privacy rights alone can protect us, they are "rights as against the world ."[44] And it is the same "Warre of every one against every one" that leads political philosophers now to speak routinely not just of a right to something but also of a "right against someone."[45]

"Right against someone": the phrase hardly sounds idiomatic, but, for that reason, it is also especially telling. We don't tend to use such a phrase, but perhaps it structures our lives more than we think. In any case, I want to suggest that this is the phrase that structures The Awakening , when, toward the end of the novel, we are shown a vision of Edna's children—those who do have a right, a right against her—appearing "like antagonists who had overcome her; who had over-powered and sought to drag her into the soul's slavery" (151). Such antagonism is by and large imagined by Edna, but it is also logical that she should so imagine, because within the adversarial grammar which is hers—within the adversarial grammar which is the grammar of rights—"against" is neither incidental nor even circumstantial,


but constitutive. The concept of rights is syntactically a combative mode. Its "most natural use," Ronald Dworkin says, arises when a "society is divided, [when] appeals to cooperation or a common goal are pointless."[46]

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5— Rights and Reason
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