Between Facts and Norms - Contributions to a ... - Blogs Unpad

419Paradigms of Lawdistribution of rights, as though this were a distribution of goodstherebyassimilating rights to goods that one can divide up andpossess. It is equally mistaken to see rights as collective goods thatone consumes in common. Rights can be "enjoyed" only insofar asone exercises them. Moreover, individual self-determination manifestsitself in the exercise of those rights derived from legitimatelyproduced norms. For this reason the equal distribution of rightscannot be detached from the public autonomy that enfranchisedcitizens can exercise only in common, by taking part in the practiceof legislation.The complementary blind spots of the social-welfare and liberalparadigms of law stem from the same error: both paradigmsmisunderstand the legal "constitution" of freedom as "distribution"and assimilate it to the model of the equal distribution ofacquired or allocated goods. Iris Marion Young has convincinglycriticized this error:What does distributing a right mean? One may talk about having a rightto a distributive share of material things, resources, or income. But insuch cases it is the good that is distributed, not the right. . .. Rights arenot fruitfully conceived as possessions. Rights are relationships, notthings; they are institutionally defined rules specifying what people cando in relation to one another. Rights refer to doing more than having, tosocial relationships that enable or constrain action. 51Injustice means primarily the constraint of freedom and the violationof human dignity. It can, though, express itself in discriminationthat withholds from the "oppressed" and "subordinated" whatenables them to exercise their private and public autonomy:Justice should refer not only to distribution, but also to the institutionalconditions necessary for the development and exercise of individualcapacities and collective communication and cooperation. Under thisconception ofjustice, injustice refers primarily to two forms of disablingconstraints, oppression and domination. While these constraints includedistributive patterns, they also involve matters which cannot easily beassimilated to the logic of distribution: decisionmaking procedures,division of labor and culture."2I tis no accident that this critique arises in the context of a feministtheory of law that rejects the welfare paradigm. The feminist discus-