Some Replies to Conor

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Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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31 Responses

  1. Avatar Rufus F.
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    says:

    “Hobbes recognizes that rights are meaningless and non-existent without support from public institutions.”

    I’d suggest he also recognizes that public institutions are meaningless and non-existent without support from the people whose rights they abstain from trampling upon, and thus destroy that meaning and existence when they don’t abstain. One of the most shocking things about Leviathan at the time ( but not so much now) is that he tells you under what conditions the sovereign has delegitimized his rule and suggests what comes next.Report

  2. Nob Akimoto Nob Akimoto
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    says:

    Need to chew on this one a bit. But I enjoyed this post.Report

  3. Avatar Jaybird
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    says:

    On this view, slaves in the Old South did not suffer any rights violations; the law declared what their rights were, and the law was obeyed. Your kvetching about it is “meaningless.”

    If we agree that rights are granted by society, we have to agree on a lot more very unpleasant things. Women here have rights X, Y, and Z… and women there have Y. Maybe. Depends.

    Do undocumented immigrants have the right to pay in-state tuition at state universities? It depends on the state, doesn’t it?

    And it turns any given state of “people should have the right to X” into a mirror image of the libertarians whining about negative rights. What does society say about X? Oh, it’s against it? Now what?Report

    • Avatar b-psycho in reply to Jaybird
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      says:

      Exactly. Rights aren’t granted so much as their denial is fought against until those claiming to speak for society (in deliberate ignorance of diversity of opinion) back off. Approval isn’t the point, it’s making resistance cost too much to maintain.

      The proper response to “now what?”, by the way is “if it isn’t violating anyone else, there is no legitimate reason to give a damn”.Report

      • Avatar Murali in reply to b-psycho
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        says:

        The proper response to “now what?”, by the way is “if it isn’t violating anyone else, there is no legitimate reason to give a damn

        Sure there are, but just becase there are reasons to give a damn doesnt mean we should go about showing how much we care by violating people’s rights. People have a right to be jerks. Even though we should not violate their right to be jerks by forcing them to be nice, it is still the case that people who are acting within their rights are still jerks. And there is nothing necessarily wrong with caring about the status of people’s souls in entirely non-coercive ways.Report

        • Avatar Jaybird in reply to Murali
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          says:

          Care all you want.

          I’ve got nothing against caring.

          When you decide that since I must not care about my soul due to my behaviors that I am not enough in my right mind to be allowed to make decisions related to my soul that, therefore, you must make soul-related decisions on my behalf?

          That’s when I start making comparisons between you and Doctor Dobson.Report

  4. Avatar Conor P. Williams
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    says:

    Thanks for a thoughtful, substantive response. I’m going to return you the favor by, um, well, writing a brief comment and then (as is my wont) leaving the debate to others. All part of my “Someone is Wrong on the Internet” Syndrome. Just can’t get wrapped into the debate or I’ll lose whole days to obsessive nitpicking and fighting.

    So I’ll limit my response to a single point regarding positivism. You write:

    “On this view, slaves in the Old South did not suffer any rights violations; the law declared what their rights were, and the law was obeyed. Your kvetching about it is ‘meaningless.'”

    Hobbes certainly wouldn’t disagree, and I’m not sure I would either. Insofar as pre-war abolitionist rhetoric swayed opinions at the top, its rights claims took on serious meaning. Insofar as the Army of the Potomac changed conditions for slaves in the South, emancipation began to matter. No amount of metaphysical jiu-jitsu could change the fact that freedom came to Southern slaves only when public institutions (military and—eventually—otherwise) gave it meaning. Coercion was requisite.

    I suspect that I’m not adding to the argument, though. Maybe clarifying a bit? For what it’s worth, I’m mulling over whether I would amend the adjectives I used to bridge the gap between our positions. Instead of “meaningless” or “non-existent,” I might instead go with “politically irrelevant” or “substantively unimportant.” That way it would be clearer that rhetoric like the abolitionists’ does have meaning if it has practical influence. It would clarify my focus on political conditions, rather than philosophical debates.

    Obviously this doesn’t actually bring us side-by-side, but it might help put some of the minor arguments to rest—it converts our disagreement to a more substantive and interesting one centered around the question of theory’s relation to practice. Maybe?

    Again, thanks for responding in good faith. I’ve tried to do the same! Nothing bothers me more than getting snarky 50-word dismissals in the comments sections of a 1000-word post. If conversation is akin to a game of tennis, online comments are too often a string of crosscourt, put-away backhands. They’re aggressive, dismissive, and defined as much by their stylishness as their effectiveness. Bah.Report

  5. Avatar clawback
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    says:

    This is simply the legal positivism that afflicts the modern world, under which you have no rights unless the state invents them and gifts them to you.

    This is an absurd caricature of Hobbes’ view (or that of “the modern world”, whatever that means). Nowhere does Hobbes say the state invents rights. Indeed, the whole purpose of the state is to preserve rights that would otherwise be trampled in his state of nature. There would otherwise be no point in having a state at all. One could not possibly read Leviathan and conclude otherwise.Report

    • Avatar Jason Kuznicki in reply to clawback
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      says:

      Is this an absurd caricature?

      Seventhly, is annexed to the Soveraigntie, the whole power of prescribing the Rules, whereby every man may know, what Goods he may enjoy and what Actions he may doe, without being molested by any of his fellow Subjects: And this is it men call Propriety. For before constitution of Soveraign Power… all men had right to all things… and therefore this Proprietie, being necessary to Peace, and depending on Soveraign Power, is the Act of that Power, in order to the publique peace. Leviathan, Part II, chap. 18, sec. 7.

      Perhaps I should go back to my long-ago college bookstore and ask for the non-caricature version.Report

      • Avatar clawback in reply to Jason Kuznicki
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        says:

        No, the non-caricature version is the one you quoted. The sovereign “prescribes” (not “invents”) rights. And doing so has a purpose, namely to preserve “peace” in this quote, and more generally to escape the state of nature. If a state where “all men had right to all things” is acceptable (as in your positivist “modern world”), what is the point of the book?Report

        • Avatar Jason Kuznicki in reply to clawback
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          says:

          To prescribe is to write down or set forth. Should the sovereign decline to offer a right, Hobbes makes it abundantly clear that, for basically all things he terms rights, the subjects have no proper recourse.

          So I’m sticking by what I said. The sovereign gets to invent the rights that exist in his polity. If he doesn’t do it, you don’t get it.

          I’d also add that I am not arguing for a state where all men have the right to do all things. That obviously is unworkable; I want the Winged Victory of Samothrace in my statue garden, you see… and let the fighting begin. Even Hobbes’ system would be preferable, though that’s no great tribute to Hobbes.Report

          • Avatar clawback in reply to Jason Kuznicki
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            says:

            Should the sovereign decline to offer a right, Hobbes makes it abundantly clear that, for basically all things he terms rights, the subjects have no proper recourse.

            And he’s right. Before the sovereign freed the slaves, they were enslaved. Before the sovereign passed the 19th Amendment (and the previous women’s suffrage laws) women had no right to vote. Hobbes simply recognized the reality and necessity of government power. You can say he said the government “invented” these rights, but that’s an absurd distortion.Report

  6. Avatar Roger
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    says:

    Jason writes:
    “This is simply the legal positivism that afflicts the modern world, under which you have no rights unless the state invents them and gifts them to you. This view is deeply mistaken. Rights claims are generalized moral claims about how humans should treat one another, whether in this society or any other. They are discovered, not created. A true rights claim is a right.”

    I disagree, though laterally. Rights are useful social conventions. Yes they are generalized moral claims about how humans should treat each other, but there is an infinite number of potential discoveries/creations. The proper ones are not proper because we discovered some Platonic essence, they are proper because they lead to the type of social existence which we value. In other words they lead to good results according to those following them. The value of the state’s enforcement is that it enforces them, not that it invented them. And yes, if we can enforce them as well without a state, they are just as good. See my OP on surfing “rights.”

    “Conor terms such claims “meaningless” and “non-existent” whenever a government doesn’t abide by them. This approach has some disturbing consequences.”

    I guess it depends upon what we mean by meaningless. What I take from it is that absent a system of enforcing useful social conventions, they are not useful. They are effectively meaningless claims. Slaves and women did not suffer “useful social convention” violations. They were exploited. The conventions were not yet discovered/ created. Later we created these conventions as a way to create a better, more inclusive society. We made exploitation ( a bad thing) a rights violation by agreeing to a set of rights which previously were not agreed upon social conventions.

    I think you are conflating social conventions (rights) with exploitation. Or perhaps more simply, you are confusing good conventions with Good.Report

  7. Avatar Jason Kuznicki
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    says:

    Thank you for your reply as well. It was clarifying enough that I think we may not need to discuss for very much longer. You write:

    “On this view, slaves in the Old South did not suffer any rights violations; the law declared what their rights were, and the law was obeyed. Your kvetching about it is ‘meaningless.’”

    Hobbes certainly wouldn’t disagree, and I’m not sure I would either.

    I’m surprised by this, because I rather thought you would disagree.

    Suppose you were an impartial observer in 1850, undecided on the question of slavery. Two people debate before you, an abolitionist and a supporter of slavery.

    Do you really come away from the debate declaring that only one of them — the proponent of slavery — had made meaningful arguments? And that the abolitionist’s speech was logically or semantically nonsense?

    Is this also how you handle controversial issues today? If so, how do you ever come to differ from the status quo on anything?

    Insofar as pre-war abolitionist rhetoric swayed opinions at the top, its rights claims took on serious meaning.

    Here is the problem, I think. We are using the word “meaning” in two different ways. You would do better to drop it in favor of the slightly antique word “consequence.” It is unfashionable, for which I’m sorry. I don’t make the fashions.

    An argument may have real-world consequence, or not. The very same argument may have a logical meaning, or not. The two are not the same.

    I am affirming that an argument about rights may have meaning even while it doesn’t have consequence. I think you probably would agree.Report

    • Right—I think we’ve localized our point of disagreement. What sort of meaning are we talking about?

      In my previous comment, I suggested that perhaps I should have originally written “politically irrelevant.” Do metaphysical foundations for rights have philosophical meaning? Perhaps. Do they have political meaning? I tend to doubt it—until conditions exist that makes them tenable. (FWIW: As a Deweyan in good standing, I’m not prepared to bother making the distinction between meaning and consequence.)

      This, by the way, is why I think that we’re moving towards the REAL argument: how much does theoretical grounding/philosophical correctness matter to politics?Report

  8. Avatar Murali
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    says:

    This is simply the legal positivism that afflicts the modern world, under which you have no rights unless the state invents them and gifts them to you

    This is not legal positivism, but positivism about rights which is an entirely different thing. Legal positivism is that the law is what it is whether or not it is just or unjust. i.e. we need not point to morality in order to identify what the law says.

    So, one can be a legal postivist and think that people have natural rights. For example, someone could say that people have a natural right to freedom of conscience, but as a legal positivist note that the constitution does not necessarily adequately protect this natural right. That doesnt mean that everything is ok or that we should follow unjust and abusive laws. All that means is that the law is what it is.

    Now, even if we were positivists about rights, that too could be taken in two ways. Rights are in the end just adjudication rules about what kinds of claims trum others when there are mutually conflicting claims. When we ask whether a rule exists, all that could be is a question of whether the law provides for it. So, that allows me to meaninully say that some states used to give some people the right to own others. There really were rules that allowed ownership claims on other people to trump their liberty claims.

    The other way to talk about a rule is to ask whether it is a moral rule. The positivist about rights is making a semantic claim that whether a rule exists is separate from whether it is right that the rule exists. So, whether a person possesses a right is different from whether they should have that right.

    The question of whether there are pre-political rights in many ways depends, not on whether we can say anything about it being right that people have some rights, but in the way such rules can be justified. The reason people tend to get pissed off at natural rights talk is because natural rights talk seems to suggest that we should have certain rights because doing so accurately reflacts some underlying metaphysical reality. This, to put it undelicately, sounds like so much nonsense on stilts.

    But just because people reect the underlying metaphysical reality type of justification doesnt mean that they reject all justifications. People may point out that we should instantiate these rules and poies where these rules are not instantiated are problematic (to say the least) because they allow or even ree some people to be treated as mere means rather than as ends in themselves. Or, having these rules are conducive to human flourishing or will produce the best consequences or that these rules are the kind we can will a universal law or these rules are what we would choose behind the veil of ignorance. i.e. the mere fact that we are positivist about rights doesn’t mean that we have nothing to say about societies which do not instantiat those rights.

    So, the mere fact that rights are given to people by the government doesnt imply that it is some kind of privelege or that it is optional. Same way that the mere fact that my salary is something my boss gives me doesn’t make my salary something I get only at the sufferance of my boss. For example, the fact that I have a contractual relationship vis a vis the salary would make that salary decidedly more obligatory.Report

    • Avatar Jason Kuznicki in reply to Murali
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      says:

      Legal positivism is that the law is what it is whether or not it is just or unjust.

      That’s not a very helpful definition. Does anyone seriously maintain that the law is not what it is? Or that the law is what it is not?Report

      • Avatar Murali in reply to Jason Kuznicki
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        says:

        Legal Naturalists argue that unjust laws aren’t really laws at all. The initial framing of legal positivism is admittedly a bit clumsy. So, how is this for an alternative: legal positivism is the view that there is no necessary connection between legal validity and morality.Report

  9. Avatar James Hanley
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    says:

    Jason, A very good post, and my two quibbles here are not intended to suggest otherwise.

    On fragmenting the excutive, most U.S. states manage it pretty well. It may not scale up the national level, not because of size (Cali’s larger than most countries, whatever metric we use), but because of differing responsibilities (primarily international affairs), but that would need to be demonstrated rather than just assumed. The takeaway is, I think you might be overestimating the practical difficulty of fragmenting the executive.

    I’m somewhere between you and Conor on rights. I think the problem is language, trying to use the same word–rights–for two different things, a good (perhaps true*) idea and a legally protected state. Instead of arguing about the relative differences, roles, and effects of these two different things, we end up arguing about which of them deserves that word. I think you’re right that these norms/ideas/ideals are meaningful, and I think they are meaningful because they often have real effect, even if it’s a slowly developing one. E.g., the idea that enslavement was intrinsically wrong was awfully slow in having Conor’s “political significance,” but it always had the effect that it brought more and more people into its belief system, so that it’s political effect grew and grew. An idea changing society’s value structure has meaning/effect well before it changes policy because it serves to deligitimize policy, perhaps the whole government.

    But it’s still not the same as an enforceable protection to do or be something. I would reserve “right” for legally enforceable protections, solely because the term’s already used that way in our Constitution, but ultimately I’d settle for just about any terminology that made it easier to distinguish between the two concepts.

    ____________
    *I’m uncomfortable using the word “truth” in relation to a normative value.Report

  10. Avatar Alex Knapp
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    says:

    How do you discover a right? Is there a test? An instrument?Report

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