…To the Tree of Life? Rehearsing this refrain for a benefit concert last weekend, choir director (and educator and community organizer extraordinaire) Jane Sapp urged us to sing out against the budget cuts falling on so many life-sustaining programs across the country.
Sometimes law needs more music. Legal theory’s familiar critique of rights sounded flat against the spirited voices of young people gathered to memorialize one of the group who died too young in a Massachusetts city struggling with underfunded schools, poverty, racism, violence, and the aftermath of a recent tornado. A few days before, at a Buffalo public hearing on a utility energy efficiency program, I heard an activist with a low-income group break into heartfelt song to demand increased weatherization funding for low-income customers who cannot afford heat, from a gas company paying its CEO $3,550 an hour. The presiding Administrative Law Judge noted that this may have been the first musical testimony presented as part of a New York public service commission regulatory proceeding.
Even without the music, idealistic visions of equal rights often are treated as sentimental and unsophisticated in contemporary legal theory. The standard critique from left and right is that, no, you don’t have any meaningful rights unless you have power already. You need not only a right but a plenty of economic, cultural, legal, and political capital to implement, enforce and interpret that right and to regulate the backlash from opposing interests. Even worse, your effort to assert a “right” is likely to be treated as an undeserved, unaffordable pejorative “entitlement” that proves your interests deserve exclusion and punishment more than protection. Following this reasoning, we must carefully, coldly calculate the costly consequences that will flow from any effort to assert rights that disrupt the ever-lower place to which most are relegated in the prevailing distribution of power.
Ok, but as austerity budgets chop away at the tree of life, we need to remember that all this tough-minded scrutiny of debt and entitlement costs is a prescriptive performance – a display of aggression — not just an objective description of economic fact. Like the voices of resistance singing out for rights, cost-benefit calculations work to shape the future by declaring who and what counts (see e.g. Douglas Kysar’s critique of “objective” economics in regulation ). Rights haven’t gone away, they’re just being moved around, to support extravagant CEO compensation, corporate-controlled government, and many other projects of austerity and hierarchy. The problem is not just that too many people have replaced faith in equal rights with faith in unequal markets. It’s also that too many people have lost sight of the potential for power and joy from coming together to insist on a better future. That’s why we need a vision of equal rights that rests not just on law, not just on legal critique, but also on the music and art and community building that will move us beyond silence and surrender.