It is common in some circles to say that our legal system worries too much about rights and not enough about responsibilities. The complaint is a fair one, as far as it goes. But the real problem with rights—and with what Mary Ann Glendon calls “rights talk,” a kind of talk that dominates much of our law and much of our politics—is not that we have too many or too much of them. The problem is that we have the wrong kind. In this century the type of rights our law protects has changed, and as it changed, our idea of rights changed as well. These changes affect much more than law and lawyers; they transform the way all of us, on the right or left, think about governance and citizenship.The changes are not entirely bad (far from it), but they have had some very bad effects. Among other things, they have given moralism—the belief that law and public policy ought to embody moral standards, along with the belief that those standards are something other than made-up and culturally contingent—a bad name. And they have made this changed vision of rights so pervasive that even moralists tend to go along with it. Our society has had quite enough arguing about the virtues of choice. We could stand a good deal more thinking and arguing about which choices are virtuous—and which ones are not.
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