According to a story we tell ourselves, we live in an unprecedented age with something called “individual rights.” As Norbert Elias writes in The Society of Individuals,
The transition to the primacy of the state in relation to clan and tribe meant an advance of individualization. … As a human being an individual has rights that even the state cannot deny him or her.
In kinship societies, feudal societies, or other “pre-modern” forms of society—we are to believe—rights and duties were hung on one’s identity. Chiefs, slaves, serfs, lords, or kings had rights linked to their station. By contrast—it seems—in modern, liberal societies an individual has rights and duties completely independent of his or her identity.
But does this make sense?
First, note that most of our rights and duties are obviously linked to our identities. Most of the duties salient to my everyday existence have to do with my identity as a man, my identity as a professor, my identity as a husband, my identity as a holder of a driver’s license, etc. The rights and duties (explicit and implicit, as well as legal and non-legal) linked to these identities are particular and far from universal.
Second, perhaps I do hold some rights completely independent of any of my identities other than “human being.” What are they? The right not to be killed? That right is denied to many with identities other than my own (such as “felons” or “enemy combatant”). The right to vote? That right is denied to many with identities other than my own (“children” or “illegal immigrants”). The right to freedom of speech? The extent to which speech is “free” is restricted to certain locations and circumstances, and depends on one’s identity within those locations. So what are these universal rights awarded to me as a result of my identity as a human being? I’m at a loss to account for them.
One response to my objection would be to say: yes, but the character and distribution of rights in modern, liberal democracies is unique and has its own flavor or character. I would wholly agree, but the distinction from other societies with which we began is thereby lost. We distribute rights and duties in some ways; kinship societies distribute rights and duties in other ways—but it no longer makes sense to characterize the two as fundamentally different.
Perhaps “individualism” and its opposite (“collectivism”?) are nothing more than mere rhetoric, little different from the old distinctions between “primitive” and “modern” or “savage” and “advanced”?
Of course, maybe I’m wrong! I’m still thinking about this, so if you have any insights on the matter don’t be afraid to let me have it in the comments below!
I would want to make a clear distinction between the doxa of rights (i.e., what we “tell ourselves”) and the tangible or substantial differences that certain rights can and often do confer on people (e.g. civil rights struggles, marriage equality, etc.). Without getting into the “pre-modern” vs. “modern” dichotomy, which is no doubt complex along the lines you have laid out, I would agree that rights are explicitly tied to our identities and our ability to exercise said rights (as well as to massage, manipulate or abuse them) is very much contingent on social and financial capital.
Without idealizing rights in modern liberal democracies, I think it is worth debating how they can be improved and radicalized and whether or not things like “formal” toleration (circa 17th-18th c.) or marriage equality can/do serve as pacemakers for cultural changes, including those that pertain to identity. It’s not a one way street, to be sure, and part of the task of the social theorist is to offer criticism of how older forms of domination transform themselves and reemerge in spite of changes to the law. Marriage equality in places like Canada and parts of the US may be a good example of how the formal/legal sphere serves an important function in this regard (i.e., as a pacemaker of sorts) though one that is also variously and partially applied, degraded or mythologized as the case may be. Questions of $ capital are also important, though I’ll leave that matzo ball to the side for now.