Natural Rights, Naturally
A long, long post about my views on natural rights theory, much of it recycled from my defunct blogs. Prompted by some of Tod’s questions below.
Genuine natural rights theory is very different from the rights talk that people employ by intuition. Everyday rights talk tends to be founded on one of two claims.
In the first approach, speakers declare that “rights” are the equivalent of “what the state currently gives you.” This is legal positivism. Its necessary corollaries are that (1) rights are purely conventional and (2) the state has no real justification for adopting any one set of rights over any other. While (1) may seem liberating, (2) really ought to frighten us away.
(2) leaves us philosophically defenseless against arbitrary state action; whenever the state has acted, whether to remove a genuine right formerly enjoyed or to grant a new and unjustified one, we find ourselves with no arguments that carry any weight. Rights are what we get, and that’s that. To critique a fascist state, or any state for that matter, we need some independent point of reference. Natural law is an attempt to provide one (as is utilitarianism, for that matter). Legal positivism doesn’t supply one.
In the second approach, speakers declare that “rights are what I think is right” or just “rights are what help me and/or my group.” This isn’t terribly compelling as philosophy. It suggests both a clash of rights claims and no intellectually satisfying way of resolving it. Now, conflicts do happen within more sophisticated natural rights theory, but they often suggest at least a few plausible ways of resolving themselves. There are opportunities to exercise judgment; there are legitimate disputes over values; there are enigmas. Aesthetically, this has the feel of truth to it. Or at least the feel of something worth a human effort. Quite different from the argumentative terrain produced by a clash of bare assertions: “I say it’s good” meeting with “I say it’s not.”
Natural rights theory properly understood claims that there values human beings should have, or ought to have, in light of what human beings actually are, and in light of what they might potentially become. These values can be translated into assertions about proper social behavior, and some of these assertions about social behavior may be sufficiently compelling that the use of force becomes legitimate to see them realized.
Yes, I am aware of the is-ought problem. And yet — is there anyone who lives as if it were a genuine obstacle to the ethical life? No, not a one. This in itself should suggest to us that the is-ought problem is less a refutation of naturalistic ethics, and more dirty trick of language. I find that a strong answer to the is-ought problem is simply to understand our “ought” statements to be claims about our preference ordering of different possible worlds as we understand them. There is no “is” in the present world that causes us, grammatically or otherwise, to say “ought,” but there are certainly different paths we might or might not wish to take toward different future worlds — and these are what we are talking about when we say the word “ought.”
Within a fairly wide tolerance for individual variation, there are genuine, comprehensible human values — things we should and should not want. And I would say that we get these shoulds and shouldn’ts from one very peculiar thing about human nature.
Our nature is very different from the natures of other entities in that we are capable of abstract and logical thought, of planning for the future, of thinking about probabilities, certainties, and complicated sets of imagined, possible worlds that may turn out to be better or worse depending on our own actions. It is our highest ought to examine them and to choose carefully among them, the better to sustain the act of considered choice itself, and to lay open a greater and greater scope for the life of the mind. The examined life is the greatest end of human life, the one toward which all our other aims should point.
I am, in other words, a fairly modest, chastened, secular, neo-Aristotelian. Daniel Dennett and Henry Veatch have expressed what I’m getting at here. Read them, I’d say. (I started on Ayn Rand, which was both a blessing and a curse. You may discard her without loss.)
We are built for certain things, and the one thing within us that is truly remarkable is the use of reason. Much evidence says that we are still very bad at it in objective terms, but this doesn’t matter. In relative terms — when we compare ourselves to the animals, and or we compare our reason to our other faculties — we are doing pretty well. We should move in that direction, because it’s clearly our specialty. The examined life is the one good trick that we have.
Rights are the means by which we attempt to secure the benefits of the examined life, given the necessity — and the advantages — of living in close quarters with other people. Robinson Crusoe can very well live an examined life in solitude, and he can reap every reward of his reflective planning. A man in a society, however, might end up being in two senses alienated from his own nature as a rational creature: First, he may choose to live not primarily by his reason, but as a parasite on the efforts of others. And second, he may become a victim of such parasites.
Rights exist to minimize both of these things in practice. A rights claim is a claim that certain behaviors may be prohibited — or demanded — with sufficient urgency that the use of force is justified in realizing the claim. Rights are very often prohibitive of the use of force for other purposes, which makes a good deal of sense under this definition. Rights are also different from the obligations that one owes to oneself; they are a subset of the rules that describe good conduct, in that many of the other rules of good conduct do not justify the use of force by others when they are violated.
Now, a thief may be a very cunning planner and in that limited sense he may be rational. But the success of his every plan depends on the defeat of the plans of others. Why should his plans win? We have no good answer for the question. In this a thief differs from a trader, who is — or at least should be — happy to see success both in his own plans and in everyone else’s. Positive-sum behavior is the sort that makes living in a society beneficial rather than harmful, and a justified rights claim will tend to encourage it.
It is often objected that natural rights don’t have any natural enforcement mechanism. Absent such a mechanism, can they even be said to exist? Can there be natural rights at all without a God to settle the scores?
Advocates of natural rights theory are not claiming that the rules they speak of are laws in the sense of the law of gravity or of magnetism. Nor need they claim that in the Last Judgment, God will set everything right again. We are speaking of logical inferences based on human attributes and conduct, inferences that suggest claims about how we may properly act. One may act against these claims, but never without having done something that we are justified in calling wrong.
It may well be that some violations of natural rights go unpunished forever. This doesn’t make them any less violations. Consider a promise to a friend: If you break such a promise, is it any defense on your part that the promise lacked a natural enforcement mechanism? Natural rights are like that — they are promises implicit in your claim that you want to live a considered life in a peaceable, orderly society with other humans.
Further, if nature did cause moral laws to be enforced automatically, these laws would not be up for debate, no more at any rate than digestion or the galvanic skin response. “Obey gravity,” says the old T-shirt. “It’s the law.” But this is no guide to human action or to the good ordering of a society through time.
Instead, what we must do to discuss, to test, and to think about the rules that may be chosen. And among the set of possible choices, some may fit better than others with the nature of the beast called man. Rights in the social sense are claims. Not certainties. Rights claims may be morally good, or not. They may also be enforced, or not. Competing rights claims exist all the time. At least some will necessarily be unenforced, as a matter of practical necessity. And at least some will be wrong, as a matter of logical necessity.
Now, to be sure, some gravity-type natural laws are particular to humans — the need to consume vitamin C, or the need for oxygen, without which we will die. But these are not in themselves natural rights, because they are not in themselves moral claims. Still, “no person should be willfully deprived of oxygen” and “no person should be willfully deprived of vitamin C” are moral claims. Rights are claims about proper human behavior, not about the mere physical preconditions for human life.
We humans survive and flourish — or we suffer and die — based on the quality of the complex, adaptable, long-range plans that we make. In this, we are distinctly, objectively different from other animals, who only make at best very short-range plans, or who rely purely on instinct and habituation. Natural rights, as I would define them, are those moral obligations that we have toward others in consideration of our planmaking natures, and in our attempts to maximally coordinate the plans of all such creatures for our own happiness and well-being.
For example, we have property so that we may do things with it, and we may count on reaping the benefits (or costs) of our own plans. Although there is no chemical or physical attribute of objects or land that marks them as “property,” we can still say that the way that humans use objects and land creates some implied moral claims to them, and these moral claims exist whether or not they are enforced, whether or not there is a government, and even whether or not we have conceptualized them.
Note that the existence of planmaking among chimpanzees, other highly intelligent animals, or borderline cases along the evolutionary tree does not negate the existence of natural rights among humans. Instead it offers evidence, whose convincingness we may debate, that these oter entities’ plans and planmaking, insofar as we could apprehend them, should be integrated into the web of rights and obligations offered to all sentient creatures.
(Hypothetical for a moment: Suppose we discovered an alien race that was rational and planmaking, but that did not experience happiness as we report it. Many utilitarians might be flummoxed by the mere existence of the Vulcans, who do not act for happiness, a mere emotion. A natural-rights theorist, however, would notice the Vulcans were rational, note their ability to think about the future, and that note that they act on their environment accordingly, and there would be no question about how to treat them.)
I am far from persuaded that the more intelligent animals have reached anything like the level we have, even if their genes are often very much like ours. But there’s an even stronger borderline case that we deal with all the time — children, whose genes are precisely like our own. We nonetheless have good reason to treat them differently, and we would never argue that infants should have the exact same rights and obligations as adults, by virtue of their shared genes. Natural rights are based on reasonable expectations about behavior, not on genetic code.
Where children and other less-than-competent actors fit in a theory of natural rights is the subject, as we say, of another post. The point here is that rights are about goals and intentions, and not about molecules or genes. To the degree that one can be presumed to form rational goals and intentions, one should be allowed to do so, and to execute those plans, as long as that allowance does not interfere with a like allowance for everyone else. (We should also err on the side of more rights, rather than fewer, for adult human beings. Again, the subject of another post.) Children, who can’t be presumed to form fully rational goals and intentions, have guardians assigned to act on their behalf. (Perhaps animals should too?)
The cases of animals and children point to the fact that natural rights theory is a theory — that is, it is an explanatory model. Like other theories, it may fit better or worse given various observed cases. This is not a defect of a theory, but is actually just how theories of all sorts actually work. It is curious that this property of theories is sometimes taken, in the case of natural rights theory, to be a fatal objection — but it is never a fatal objection anywhere else.