Burdens of Individual Rights Consciousness

Individual rights consciousness places inappropriate and unacceptable burdens on persons who are not in a position of power to claim their hypothetical rights.

Liberal legal theory promotes the idea that the individual is responsible for invoking and pursuing his or her own rights. Rights are to be claimed. Legal force is marshalled behind the individual with the variety of means--the political and economic prowess, physical force, education and understanding, and psychological will--to assert them. The problem, of course, is that legal liberalism presumes the rights-claimant to be an individual of such means. The rights-claimant is to be a peer of the injuring party. But parity in power may not be a realistic assumption in many relationships where society may nevertheless have an interest in imposing responsibility.

Current constitutional law and liberal legal theory have not adapted in a positive manner to 'changes in the relationships of power and powerlessness' which lie at the base of contemporary socioeconomic problems. In 'an age in which power has flowed . . . to government, to large institutions,' law might 'focus particularly on what might be called 'middle class law,' the law of people in relationship to institutions and organizations.'¹³⁰ To order transactions among social actors of differing power, the law may have to describe the obligations and regulate the responsibilities of actors to one another in social relations, rather than merely to furnish the channels for individual assertion of rights.

When individual rights theory governs situations where people are not in a realistic position to exercise their rights, 'the invocation of a right is often a means of avoiding placing responsibility on someone in a position of strength and control.'¹³¹ '[S]uch a conception of individuals and their rights may not be an effective means of addressing some injustices.'¹³² The point is forcefully illustrated by Professor Elizabeth Wolgast in her example of the 'code of patients' rights' instituted by the American Hospital Association:

Now what can be wrong with this way of dealing with patient care? First, these rights . . . imply that hospital personnel are commonly guilty of unethical or insensitive conduct; otherwise there would be no need to protect patients against abuse. Second, the institution of rights focuses on a patient as complainant. . . . [But] the patient is not in a good position to exercise such rights. . . . Giving him rights puts him in the role of an assertive and able individual, but this role is inconsistent with being ill.
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     . . . It's the doctor who needs to be reminded of his charge, and that's where the focus ought to be, logically--on the doctor and his or her responsibility. ¹³³