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I Exist; All Else is Consequence
There have been some interesting discussions on what natural rights are, and why they are, in the blogosphere recently. First, to summarize: Max Borders postulates that rights have meaning only because we give them meaning; all rights are socially constructed. Borders likens rights to money, without understanding the difference between fiat currency and money. (But then, he doesn't appear to understand anything about civil vs. natural rights, either.) Jon Henke is impressed by this argument,…
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Wills-O’-The-Wisp
There is one thing stronger than all the armies in the world, and that is an idea whose time has come. -- Victor Hugo
Either rights exist, or they do not exist. If they exist, they involve absolute consequences...Furthermore, if a right exists, it exists at every moment. It is absolute today, yesterday, tomorrow, the day after tomorrow, in summer as in winter, not when it pleases you to declare it in force -- Louis Thiers
"Rights are an archist concept. Rights have no meaning except when confronted with superior power. They are what is left to the people after the government has taken all it wants. Your country's Bill of Rights defines your most cherished freedoms how? By limiting the legal power of government to encroach upon them." -- Eric Harry, Protect And Defend
Democracy is the theory that the people know what they want and they deserve to get it good and hard -- Henry Louis Mencken
Government Systems, acting in accordance with the laws of growth, Tend to Expand and Encroach. In encroaching upon their own citizens, they produce Tyranny, and encroaching upon other Government Systems, they engage in Warfare. -- John Gall, Systemantics
Pride goeth before destruction, and a haughty spirit before a fall -- Proverbs, 16:18
Few things excite your Curmudgeon more than a discussion of fundamental principles.
Many persons would fail to understand that, but then, many persons are, shall we say, not all that well stocked between the ears. Even many highly intelligent persons regard all the "important" fundamentals as already settled to an adequate degree. Some others dismiss such abstractions as a will-o'-the-wisp, which should not be permitted to interfere with "practical" political pursuits:
My argument is that neither souls nor rights exist in the same way tables, atoms, matter and energy exist. And while there are a number of philosophical debates about whether or not you can truly know the existence of tables, atoms, and energy, science does a pretty good job of providing the pragmatic, instrumental and commonsensical reasons for believing they do. But souls and rights are a different matter (no pun). On these, science is silent. And for good reason: there are no such things as rights or souls.
A few days ago, the esteemed Jeff Medcalf, one of the Blogosphere's most luminous stars, forwarded the above-linked Max Borders article to your Curmudgeon for his comments. At the time, your Curmudgeon considered it worth no more than a quick chuckle over Borders's presumption and inadequate comprehension of fundamentals. But in the wake of the Palestinian "elections," and Jeff's own excellent article on rights, your Curmudgeon has decided that the moment has arrived for a dive to the bottom of the pile of assertions and fantasies that surround the critical concepts of rights, democracy, and society itself.
Put up a fresh pot of coffee, Gentle Reader; this one will go on for a bit.
There's probably no word in political discourse that gets as much use -- and abuse -- as "rights." Yet virtually no one ever raises the questions that would give a claim of rights its full significance:
- Why do the politically engaged always make claims of rights? What do they intend by such claims?
- How does a claim of rights differ from any other sort of claim?
- How might arguable claims of rights be distinguished from fatuous or misleading ones?
- Above all, why do rights matter? If context is important, how can we recognize the applicable contexts?
Because "rights" claims are so thick on the ground, and because of the general inattention to the questions above, the word has lost most of its punch. Because American education has become a subject for dismissive titters, the mental equipment required to address the fundamental questions about rights is missing from most -- indeed, nearly all -- minds. And because the world is so full of a number of things, some of which come bearing eviction notices, warrants, and guns, we tend to slough abstract considerations under the unrelenting pressure from "real life." All of this is unfortunate, though it does create a "niche market" for a working thinker like your Curmudgeon.
Even the most intelligent reader might already have dismissed the subject as undecidable in perpetuity. To be fair, he probably has some reason. But the concept of rights will not disappear from our discourse any time soon; the evidence is that its roots reach all the way back into the Indo-Hittite "muttersprach" from which every significant language on Earth has sprouted. Therefore, the concept of rights is at least as old as human language, and could well be older.
We have no choice. Regardless of anyone's opinions, and regardless of how much simpler political exchange would be without all the assertions and counter-assertions about rights, we cannot wish the notion away. It must be dealt with seriously and firmly.
1. Why do the politically engaged always make claims of rights? What do they intend by such claims?
Have you ever had the "pleasure" of "arguing" with someone given to saying, "To settle our differences, assume that I'm right and you're wrong; let's start from there" -- ? If not, congratulations; you've been mightily blessed, and your Curmudgeon envies you greatly. Anyway, such an assertion is a perfect parallel to a claim of rights.
In theorist Ronald Dworkin's formulation, "Rights are political trumps held by individuals." If you don't play bridge, a trump is a card which will beat any card of any other suit, regardless of the other card's rank. Dworkin's use of the term is intended to convey that in political conflict, a claim of rights, if acknowledged as valid, overrides any claim that's not a claim of rights. Therefore, if Smith can establish that his claim is about rights and Jones's competing claim is about something else, Smith wins automatically; Jones's claim is reduced to irrelevance.
In the world of purposive human action, there are only two categories of considerations: objectives and constraints. Rights are a constraint: they bound what we are allowed to do, either directly or through political intermediaries, in pursuing our objectives. But this immediately implies a principle of overwhelming significance:
Since claims of rights issue solely from conscious individuals, Robinson Crusoe had no need to think about rights. His considerations were entirely about survival priorities.
The converse is also significant: Persons raise claims of rights to impose constraints on others, and for no other reason. If Smith raises a claim of rights to constrain Jones, it implies that Jones's intentions -- possibly even his existence -- affect Smith in some discernible way that Smith disapproves. This makes it obvious why groups that seek power over others habitually clothe their demands in the garb of rights.
2. How does a claim of rights differ from any other sort of claim?
We've already covered one of the differentiators between rights and other claims: a claim of rights is considered to trump any other sort of claim. Because of this, it must be grounded in some proposition upon which there is a near-to-unanimous consensus. He who asserts a "right" in which a great majority disbelieves will not be able to command enough assents to enforce his claim -- and force is the one and only mechanism by which to constrain those who decline to honor one's claims.
Examples abound. In America at this time, the right to life is nearly universally accepted, even though a great many people are badly fogged about what it means. However, the "right" to a free fur coat is not widely enough accepted to be honored when raised, and the right to life of a full-term-but-unborn baby is being fought over as we speak. In a civil society, the force that kicks into operation upon the recognition of a violated right is the force of public justice: the police, the mechanisms of indictment and prosecution, and the criminal courts. One must not forget that these are instruments of force; he who stands accused of a crime must always be conscious of the bailiff's gun.
If your Curmudgeon might recur to the section above for a moment, the use of force discussed here is the use of interpersonal force: force by which one man or group constrains another. In the political context, a hundred-ton dynamite blast used against an inanimate feature of the Earth such as a cliff is insignificant. A raised nightstick, if its target is a human body, carries all the significance in the world.
3. How might arguable claims of rights be distinguished from fatuous or misleading ones?
In practice, rights claims are always generalized -- that is, they pertain to some generic attribute or practice of Mankind -- and categorical -- that is, they assert that all persons, or alternately, all persons united by some distinguishing characteristic, possess the right. Few persons would have the cheek to claim that the right to life applies only to a delimited group of persons identified by name, address, and Social Security number. Nor would anyone be foolish enough to claim that all persons have a right to 1313 Mockingbird Lane, Blankville, Indiana, or to the Ford Mustang with Vehicle Identification Number 123456789ABCDEF.
(NOTE: The generalized and categorical properties of rights claims do not descend to specific cases; rather the reverse. The right to life is conceded to all innocent men, and is the reason why Smith has a specific right to his life. The right to honestly acquired property is conceded to all innocent men, and is the reason why Smith has a specific right to his house. If approached from the other end -- a claim, for example, that Smith has a specific right to his life or his house -- we immediately recur to the generalized, categorical right as substantiation.)
Yet it is at least thinkable that highly specific claims of abstract rights can be raised. Some activists have come fairly close. For example, activists for "the right to health care" argue that the diseased have a right to impose themselves upon medical professionals and institutions. Activists for "handicapped rights," whose exertions have saddled us with the Americans with Disabilities Act (ADA), have succeeded in creating a presumption of special rights by variously disabled persons to impose themselves on others in commercial venues. Some extremely evil persons are agitating for "deaf rights," on the grounds that deafness is a culture as well as a handicap; included in this claim is the assertion of a right to deliberately impose deafness on an as yet unconceived child. These "rights" are curious things; a man can acquire them by harming himself, whereas were he to become whole, he could no longer lay claim to them. Yet the law occasionally treats them seriously.
However, if we stand firm upon the generalized and categorical nature of rights claims, we must confront the question "why?" It is the difficulty of dealing with this question that has made space into which foolish persons, seemingly determined to ignore all of human history, have inserted their claims that rights are wholly illusory, at best only a "social construct."
4. Why do rights matter? If context is important, how can we recognize the applicable contexts?
When men gather into concentrations of a sufficient density, their interactions will inevitably generate frictions among them. Conflicts will arise; claims to specific things will clash; the persons involved will seek means by which to get what they want at a tolerable cost. Though this is not the origin of government -- read Franz Oppenheimer's The State for an eye-opening treatment of the emergence of political structures -- it is the reason most persons will concede the necessity of government.
But government is only an instrument by which force is deployed to compel or prohibit the actions of men. When men come together under the sign of peace -- the agreement that their conflicts, whatever they might be, do not justify the use of force -- government has no relevance to them; indeed, they would rightly regard its unsolicited intrusion as intolerable. Yet governments inevitably seek to intrude into all human affairs: it is in the nature of governments to seek absolute and unchallengeable power over a steadily expanding region and subject population. Though this assertion has been challenged by Marxist theorists, particularly those who directly followed Marx, there is not one case in the annals of history that militates against it. Therefore, if not constrained by some superior instrument, government will inevitably be turned to evil.
Since the Industrial Revolution, the force deployed to counter the potential oppressions of the State has always been the concept of rights. Men would agree on the general possession of certain rights, would write those rights into constitutions and similar charters, and would expect the governments organized under those charters to behave accordingly. In some lands, the United States being the foremost example, the body of the people in arms was expected to be the ultimate enforcement agency for those rights. An armed populace, it was reasoned, would be vigilant about its liberties and would pull down anyone, or any government, that sought to invade or abridge them. To put it gently, it hasn't worked out that way too often.
However, the larger point stands: governments have been circumscribed by explicit recognitions and guarantees of rights, the formal expressions of which were expected to keep the governors in line. The great irony of that conception is that wild claims of rights, most of which explicitly contradict other, widely accepted rights, are among the principal weapons of those who seek to expand governments' powers. The tendency of decent men to listen respectfully to claims of rights, however absurd they might ultimately prove to be, has partially disarmed them against the encroachments of power.
In the last analysis, men will assert themselves against oppression only when energized by the belief that their rights are at stake. It's a necessary, though not a sufficient condition.
The attentive reader will have noticed that up to now, your Curmudgeon has spent no words on "natural rights," "contractarian rights," "distributive rights," or any of the other quasi-philosophical bases for assertions of rights. Though he holds to the natural-rights thesis, he is aware that there are persons to whom it is impenetrable; more, opening that can of worms invariably involves dealing with the problems of domains of applicability, clashes among rights asserted from a basis in nature, and interpretations of certain natural phenomena as embodying commands from God. Happily, there's no need to get involved with any of this, except as tutelage to the Max Borders of the world, who seem incapable of noticing that peaceful, successful societies always converge on the very rights that are at the core of Lockean natural-rights theory. You'd think a pattern like that would be too suggestive for anyone to miss, but as has been said by George Orwell and others, there are some propositions so foolish that only an intellectual could believe them. That includes the notion that "socially constructed" rights that don't square with the innate properties of Mankind -- with our natures -- can possibly support human flourishing.
Just now, the embryonic Palestinian "state" has completed an election in which the HAMAS party, known worldwide as a terrorist organization dedicated to the destruction of Israel, has won a strong majority of the seats in Palestine's Parliament. Though HAMAS's terrorist activities are widely known, far fewer persons are aware that HAMAS is an acronym for Harakat Muqawama Islamiyya, which is Arabic for Islamic Resistance Movement. HAMAS is an explicitly Islamist organization; its charter, published in 1988, explicitly proclaims its goals to include the imposition of Islamic shari'a rule on "all of Palestine," which includes the part known today as Israel:
The Islamic Resistance Movement believes that the land of Palestine is an Islamic Waqf consecrated for future Moslem generations until Judgement Day. It, or any part of it, should not be squandered: it, or any part of it, should not be given up. Neither a single Arab country nor all Arab countries, neither any king or president, nor all the kings and presidents, neither any organization nor all of them, be they Palestinian or Arab, possess the right to do that. Palestine is an Islamic Waqf land consecrated for Moslem generations until Judgement Day. This being so, who could claim to have the right to represent Moslem generations till Judgement Day?This is the law governing the land of Palestine in the Islamic Sharia (law) and the same goes for any land the Moslems have conquered by force, because during the times of (Islamic) conquests, the Moslems consecrated these lands to Moslem generations till the Day of Judgement. [Article Eleven, HAMAS Charter]
Now, inasmuch as the people of the West Bank and Gaza Strip, which we shall call Palestine henceforward as a terminological shortcut, voted HAMAS into power, we must accept at face value their endorsement of the goals of HAMAS, including the imposition of strict shari'a rule upon them. So this "socially constructed" notion of rights -- non-rights, actually, since political Islam explicitly denies that rights have meaning -- is now by popular choice the governing philosophy of Palestine.
If a society's choices about rights were entirely unbound by prior and superior considerations, such an election would have no determining effect upon the political, social, and economic future of Palestine. But the "democratic" results of the election cannot be disputed: HAMAS now rules Palestine. What the Palestinians will have as their political envelope is what HAMAS will impose upon them. If history is a guide, that will prolong and deepen the Palestinians' sojourn in violence and squalor. If HAMAS marshals the authority of the Palestinian government behind its assaults on Israel, it could precipitate a war that would utterly extinguish all Palestinian dreams of a state of their own. The possibility should give pause to anyone who holds that the supreme principle of government is that the majority should have whatever it wants, and be damned to rights -- the clarified form of the extreme democratic thesis.
Some societies endure and prosper; others falter and fail. When a student of political and economic systems looks for the commonalities and differences among them, what does he see?
- There's a strong commonality among all successful societies in their conceptions of rights: they prefer the classical Lockean rights to life, liberty, and property.
- Successful societies tend toward a gentle evangelism about their conceptions of rights, whereas unsuccessful ones tend toward violent relations with other states.
- The flow of migrants is toward societies built on Lockean rights.
- Societies that experience social turmoil, and which attempt to suppress it by suppressing expressive rights, experience an acceleration of that turmoil, and usually fall before it.
- Societies that experience economic dislocation, and which attempt to quell the associated suffering by suppressing economic rights or forcibly redistributing wealth and income, quickly deteriorate into economic collapse and general squalor.
The dispassionate, impartial observer would have to conclude that there's something going on here: an underlying force at work, which is prior and superior to all "social constructions," no matter how ardent they might be.
Your Curmudgeon opened this essay by alluding to the ongoing discussion of fundamental principles: specifically, the discussion of rights, their origin, and their impacts on the societies of Man. Yet the reader could easily conclude that he hasn't really touched on fundamentals, that the whole essay to this point has been about "mechanical" considerations: why groups make claims of rights; what properties are associated with an arguable claim of a right; how such claims interact in practice; their impact upon governments; and so forth. When do we get to the meat of the matter: what are the Rights of Man, how do we defend them, and so on?
We don't. Jeff's article has been there. What your Curmudgeon has provided is an outline of the processes that are invoked to claim rights, and the processes any concession of rights will set in motion. For in a world where disagreement about fundamental things has been the norm for all of recorded history, we cannot escape the Process Postulate:
Mind you, "legitimacy" isn't meant here in the theological or deontological sense, but rather in the sense of what conformances are required to allow a society to perpetuate itself and its norms. Many a libertarian will tell you that all taxation is theft. Under an absolutist regime of private property rights, it is. But that absolute a principle of property rights has never been conceded by any governed society; all societies with States grant their States the power to tax. Rather, they limit the power by chaining it down with constitutional constraints and prohibitions such as the Takings Clause of the Fifth Amendment. They erect procedural labyrinths through which legislatures must go to exact taxes from private persons. Some even implicitly sanction a certain degree of tax resistance by guaranteeing individuals' security in their personal records of their property and their incomes. When all these things are present and functioning, a regime in which the State can demand some portion of a citizen's increase in taxes becomes, if not utopian, at least more tolerable than not.
The element that most political theorists (and nearly all "policy wonks") neglect to include in their pronouncements is time. This concession of a right will erect certain incentives; given time to operate, what will those incentives produce? That invasion of a previously inviolable right will induce an impulse to evasion; what may we expect to eventuate? The processes a society embeds in its political system will cope well, indifferently, or poorly with such things. If they cope well, that society's institutions will make the changes in its rights recognitions and guarantees required to avert the worst consequences, and will move toward a better, practically more defensible framework. If they cope poorly, and are rigid before obvious warnings of danger, they will collapse under their own weight.
And all the while, Man's societies and political structures, by evolving or failing to evolve, will renew the demonstration that rights, the most frequently derided abstraction in history, are a reality, whereas "social construction" is the true will-o'-the-wisp.
