Open Thread: How do you discover a right?

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Alex Knapp

Alex Knapp writes about pretty much everything under the sun, including politics, art, religion, philosophy, sports, music, culture, and science.

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  1. Avatar Jaybird
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    says:

    That which is hateful to have violated in yourself, do not violate in others. The rest is commentary.Report

  2. Avatar BlaiseP
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    says:

    Going back to Hume and Hugo Grotius, we’re disabused of any notion of an objective measure of human rights, culminating in Richard Rorty’s claim that human rights aren’t defensible beyond the comparison of what we’d want for ourselves contrasted with what others receive. We evolve, rights evolve.Report

  3. Avatar Stillwater
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    says:

    I think this just kicks the can down the road. And pretty far, actually.

    Suppose a person believes it’s hateful to him to violate the prescriptions of Leviticus. If so, then it may be incumbent on that person to prevent those hateful violations in others.

    Defending Kant is pretty tricky. Most people don’t think it can be done. I don’t anyway.Report

  4. Avatar Kazzy
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    says:

    I assume discovering a right is like discovering masturbation…

    Exciting, confusing, a bit messy, a fear that you’ve done something wrong, and the immediate desire to do it again…Report

  5. Avatar Mike Dwyer
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    says:

    I only took one Philosophy class in college so I’m going to ask the dumb question: Didn’t the Founding Fathers ‘discover’ some rights that didnt previously exist? Didnt they believe they were capturing previously unacknowledged universal rights?Report

    • Avatar BlaiseP in reply to Mike Dwyer
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      says:

      They certainly elucidated a whole rats’ nest of Human Wrongs. Federalist 51

      Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradnally induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.Report

    • Avatar Brian Houser in reply to Mike Dwyer
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      says:

      I won’t speak to the Founding Fathers question, but it is interesting that starting with the Thirteenth Amendment to the Constitution, we suddenly discovered that blacks had the same rights that we knew white men had all along. Did those rights just magically appear in 1865 or were they there all along and we just didn’t know it?Report

      • Avatar Mike Dwyer in reply to Brian Houser
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        says:

        That’s a good point Brian and I think what they mean by ‘discovering’ rights. I look at it as similar to the gay marriage issue. Fifty years ago the idea of gay marriage was beyond the realm of rational thought. In the last 10 years a lot of Americans have ‘discovered’ that gays should be allowed to marry too. That seems to be proof that we have a living Constitution IMO. Attitudes change and SCOTUS follows.Report

        • Avatar Jason Kuznicki in reply to Mike Dwyer
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          says:

          I would not put it quite that way. I’d say that we do not fully grasp the implications of the very broad principles expressed in the Constitution.Report

        • Avatar Tom Van Dyke in reply to Mike Dwyer
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          says:

          Political “rights” can also be invented: not all are natural rights. For instance, trial by jury. The Anglish tradition decided it was the best way to secure justice, that Da Man didn’t arrest, charge, try and judge you. But systems that don’t use jury trial are not [necessarily] violating your natural rights.

          God save us from a “living” Constitution. It’s a complete violation of what a constitution even is.Report

  6. Avatar Tom Van Dyke
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    says:

    In the West, what we now know as “human rights” were derived over the course of millennia via moral reasoning, although a self-evident starting point is needed, the “right to have rights.”

    Jefferson says they are endowed by our creator. Peter Singer says “consciousness” is a claim to rights; Jaybird and Hillel have a golden formulation, but like Hebrew National and Jefferson, answer to higher power whether they like it or not.

    Otherwise, rights are not natural, they are political, and consist of whatever you, your neighbor and your government decide they are by consent and convention, i.e., what is really meant by “conventional.”

    Not that a “conventional” scheme of rights [enforced by social contract] isn’t generally workable, but we Americans chafe a bit that the “natural” rights enumerated in our First Amendment—free exercise of religion, free speech—aren’t universally self-evident even among the nations of the West.

    Hate speech or free speech? What much of West bans is protected in U.S.

    http://www.nytimes.com/2008/06/11/world/americas/11iht-hate.4.13645369.html?pagewanted=all

    This is also good, although it has a lacuna between the Stoics and Hobbes that you could fit 100 Hagues through, i.e., anything Christian [or American for that matter, as in “endowed by their Creator…”].

    http://opinionator.blogs.nytimes.com/2011/05/29/are-there-natural-human-rights/Report

    • Avatar Alex Knapp in reply to Tom Van Dyke
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      says:

      “In the West, what we now know as “human rights” were derived over the course of millennia via moral reasoning, although a self-evident starting point is needed, the “right to have rights.””

      By definition, that which is self-evident need not be discovered.Report

      • Avatar Stillwater in reply to Alex Knapp
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        says:

        They’re “discovered” by people capable of seeing them as self-evident. Those folks are the political equivalent of chicken sexers.Report

      • Avatar Burt Likko in reply to Alex Knapp
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        says:

        So are rights self-evident? If they aren’t self-evident, then they aren’t rights?

        More to the point, what is “self-evident” to you may be quite obscure to me. It’s self-evident to a lot of people that marriage can only exist between one man and one woman. Me, I don’t find that proposition at all self-evident.

        Saying that a “right” is “self-evident” is a really bad place to go if you’re looking for an objective standard.Report

        • Avatar Tom Van Dyke in reply to Burt Likko
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          says:

          The “right to have rights” is what’s self-evident. What those rights are is derived by moral reasoning. The “who” first, then the “what.” [Life, liberty and the pursuit need not be self-evident, only the “endowed” part.]

          If no “who,” then no necessary “what,” so you go to convention, bargain for whatever rights you want or can get, enforce them via social contract.

          “Government is founded not on force, as was the theory of Hobbes; nor on compact, as was the theory of Locke and of the revolution of 1688; nor on property, as was the assertion of Harrington. It springs from the necessities of our nature, and has an everlasting foundation in the unchangeable will of God.” James Otis, 1764

          This is the American scheme of rights. Although that last bit about God is rather getting kicked to the curb, the rest is a claim for “natural” rights, rooted in our nature, not convention or contract.

          We can scrap the American scheme in favor of a utilitarian, conventional scheme. Perhaps we would all live better. But according to the American scheme, we could repeal the First Amendment tomorrow but would still hold the same rights anyway, because the First Amendment is a confirmation of our unalienable natural rights, not a social contract.Report

          • Avatar BlaiseP in reply to Tom Van Dyke
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            says:

            Self-evident? Absolutely not. There is no right to rights. If rights are evident, they have been made evident by insisting upon them, usually with force of arms. Not one right was ever won without pushing back against those who thought we had none and those rights are only continued on the basis of enforcement.

            The necessities of our nature? Whose nature? My nature? Yours? The American society? The human race? Though we may pray Lord’s Prayer, that the will of God will be done in earth as it is in heaven, this is seldom the case for we are told heaven is eternal and the world evolves. There are no Natural Rights as there was no Divine Right of Kings. Both are little absolutist hobgoblins, wishful thinking, bad reasoning, sky hooks.

            Let the First Amendment be repealed and we would not hold the same rights. We would have lost a right. This is horrible sophistry, straight out of Aristotle, who said a slave was free in his mind and was a slave by nature. Well he sure as hell wasn’t free in his body.

            No, I will go with Magna Carta: TO ALL FREE MEN OF OUR KINGDOM we have also granted, for us and our heirs for ever, all the liberties written out below, to have and to keep for them and their heirs, of us and our heirs:

            Written out below. If it isn’t written down, it’s not a right.Report

          • Avatar Alex Knapp in reply to Tom Van Dyke
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            says:

            What I’m not clear about is what criteria you believe that a right is a ‘natural one.’ James Otis may have believed that it was the will of God, Jefferson may have attributed them to a creator, but what they don’t explain is how these are discovered.

            Who is performing the moral reasoning. By what standard is something judged a ‘right’?Report

            • Avatar Tom Van Dyke in reply to Alex Knapp
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              says:

              Alex, Peter Singer says creatures with “consciousness” have rights. I find him useful as a control in the experiment since God and metaphysics make some people angry. Once we accept his first “self-evident” premise, that consciousness has a claim to rights, we can put our moral thinking cap on.

              Now, many or most of us find Singer’s moral scheme appalling, that a year-old chimp has more rights than a newborn human, but that’s only because we reject his initial premise, that the level of “consciousness” determines the extent of the claim to rights.

              But substitute “human” for “conscious,” and the method of moral calculus remains the same, if not the particulars. [Apes have little use for property, humans seem to have a natural affinity for it.]

              Now, it’s my own contention that we can’t get to where we want to go—Jefferson’s initial “self-evident” premise that all men are created equal—without metaphysics. [I think that honest atheist Richard Rorty concedes that somewhere.] As an antebellum American once said, that all men are created equal is a self-evident lie.

              So yes, we run into trouble with this “all men are created equal” thing where the Hobbesian [force] or social contractor [convention] is home free.

              As for moral reasoning, it should be possible for persons of good will to work on it together. The necessary thing is to share the initial premises, which is what Jefferson is strictly saying: that we hold these truths to be self-evident, not that they are.

              In this way, Mr. Fnord’s sophistry above was devastatingly accurate as well as funny, that our agreement about the existence of unalienable rights is conventional. If they do not exist—if metaphysics is BS, then so is “all men are created equal”—then all Jefferson is doing is chronicling a shared fantasy.

              “Self-evident” is Franklin’s, BTW, not Jefferson’s. John Locke often refers to “the judicious Hooker,” perhaps it came from him.

              http://lexchristianorum.blogspot.com/2010/02/law-sit-up-higher-richard-hooker-and_07.htmlReport

              • Avatar Alex Knapp in reply to Tom Van Dyke
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                says:

                So if I understand you correctly, you’re not making the claim that rights are objective but are rather a shared cultural convention?

                (Quick aside – property might just be a byproduct of agriculture. There’s very little observed notion of property within hunter-gatherer cultures. But tough to generalize – it might only be that hunter-gatherers that eschewed property were able to survive in an increasingly agricultural world.)Report

        • Avatar Reggie Rock in reply to Burt Likko
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          says:

          You say, “what is “self-evident” to you may be quite obscure to me”

          That’s a fundamental ignorance (no offense) of what self-evident means. Self-evident means that the truth or falsehood of the proposition is contained in itself and can be determined without recourse to external evidence. The propositions “all bachelors are unmarried” is self-evident, as is “all humans have desires/preferences”.

          These self-evident axioms about moral agents are what are then used to discover rights through logic, deduction, and moral reflection. The process is not one easily summed up in 140 characters but let me make an extremely abbreviated example.

          Moral agents have desires that they seek to fulfill within a context, moral agents cannot possess another moral agent without subjugating their desires, one moral agent cannot appeal to any authority for his claim over the desires and actions of another moral agent save for brute force, brute force does not legitimize an action, slavery is illegitimate and we have a right not to be ensalved.

          Now this is a moral (or often natural) right and not a legal right. A legal right is the proper name for what everyone else on this thread has been calling a right, it is a rule that is legitimated only by it’s the ruling of an authority (courts, government, the people).

          Legal rights are descriptive things that tell us how we may or may not act within a rule system like laws, government, etc. Moral rights are normative, they tell us how we ought to act.

          TL;DR Philosophy 101Report

          • Avatar Tom Van Dyke in reply to Reggie Rock
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            says:

            Spot on, Mr. Rock. Between the Hobbesians, nihilists, and PHI101 dropouts, it looks pretty grim, as you see.Report

          • Avatar BlaiseP in reply to Reggie Rock
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            says:

            Wrong-o, Brother Rock. Self-evident does not equate to tautological. Morality is who we are when nobody’s looking, but more importantly, who we are when we can get away with shit, especially when we have enough power to make everyone else praise the cut of the Emperor’s New Clothes.Report

            • Avatar Tom Van Dyke in reply to BlaiseP
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              says:

              I shall, henceforth, begin to make some allowance for that enmity, you have discovered to the natural rights of mankind. For, though ignorance of them in this enlightened age cannot be admitted, as a sufficient excuse for you; yet, it ought, in some measure, to extenuate your guilt. If you will follow my advice, there still may be hopes of your reformation. Apply yourself, without delay, to the study of the law of nature. I would recommend to your perusal, Grotius, Puffendorf, Locke, Montesquieu, and Burlemaqui. I might mention other excellent writers on this subject; but if you attend, diligently, to these, you will not require any others.

              There is so strong a similitude between your political principles and those maintained by Mr. Hobbes, that, in judging from them, a person might very easily mistake you for a disciple of his. His opinion was, exactly, coincident with yours, relative to man in a state of nature. He held, as you do, that he was, then, perfectly free from all restraint of law and government. Moral obligation, according to him, is derived from the introduction of civil society; and there is no virtue, but what is purely artificial, the mere contrivance of politicians, for the maintenance of social intercourse. But the reason he run into this absurd and impious doctrine, was, that he disbelieved the existence of an intelligent superintending principle, who is the governor, and will be the final judge of the universe.

              As you, sometimes, swear by him that made you, I conclude, your sentiment does not correspond with his, in that which is the basis of the doctrine, you both agree in; and this makes it impossible to imagine whence this congruity between you arises. To grant, that there is a supreme intelligence, who rules the world, and has established laws to regulate the actions of his creatures; and, still, to assert, that man, in a state of nature, may be considered as perfectly free from all restraints of law and government, appear to a common understanding, altogether irreconcileable.

              Good and wise men, in all ages, have embraced a very dissimilar theory. They have supposed, that the deity, from the relations, we stand in, to himself and to each other, has constituted an eternal and immutable law, which is, indispensibly, obligatory upon all mankind, prior to any human institution whatever.

              This is what is called the law of nature, “which, being coeval with mankind, and dictated by God himself, is, of course, superior in obligation to any other. It is binding over all the globe, in all countries, and at all times. No human laws are of any validity, if contrary to this; and such of them as are valid, derive all their authority, mediately, or immediately, from this original.” Blackstone.

              Upon this law, depend the natural rights of mankind, the supreme being gave existence to man, together with the means of preserving and beatifying that existence. He endowed him with rational faculties, by the help of which, to discern and pursue such things, as were consistent with his duty and interest, and invested him with an inviolable right to personal liberty, and personal safety.”Report

              • Avatar Brian Houser in reply to Tom Van Dyke
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                says:

                I look forward to digging into that reading list, although I hope it doesn’t leave me writing like those authors did, as such affliction seems common among its readers.

                Hobbes had it right, in that the only logical way to ascertain rights is by what is truly known. Discerning them from a higher being for which there is no evidence is folly.

                Not only that, but given the self-contradictory moral principles found in common religious texts, it would be impossible to achieve a common moral standard on which everyone agrees.

                If natural rights truly exist, show me some proof.Report

              • Avatar Tom Van Dyke in reply to Brian Houser
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                says:

                That Mr. Hamilton’s republic is far more desirable than Mr. Hobbes’ Leviathan, for one, Mr. Houser? Hamilton and Blackstone’s natural law here must survive the test of man’s nature and his world or it’s not a law at all, just theorizing.

                In fact, it’s modernity that is far more vulnerable to the charge of a priori pontificating.

                [And BTW, “natural law” is held to be “discovered,” as are the “rights” that flow therefrom.]Report

              • Avatar Brian Houser in reply to Tom Van Dyke
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                says:

                Mr. Hamilton’s republic does not prove the existence of natural rights simply because he claimed to have based it on them.

                I can start a republic based on the natural right of man to have six wives, but that doesn’t prove such a right actually exists (although if my government is successful at protecting that claim, it becomes a right, albeit not natural).Report

              • Avatar Tom Van Dyke in reply to Brian Houser
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                says:

                Again, Brian, natural law tethers to man’s nature and must pass the tests of the real world. A posteriori reasoning is just fine—what the medievals called “demonstrations.”

                Is man at his best when he is free? If it appears so, an argument for liberty, then.

                When he is equal? As I think about it, perhaps man is best when he treats his fellow men as equals.

                That works, too.

                And Mr. Hamilton’s republic does work better than Mr. Hobbes’ abomination. Demonstrably. This is why some of us remain so vehemently opposed to Mr. Hobbes’ modest Rx.

                We do not blame the brilliant Mr. Hobbes in the context of the first English Civil War for deducing that order is of primary importance, since liberty is useless without order. Cromwell was better than the war of all against all!

                But order tells us only half the story of human flourishing.

                And this is why Hamilton mocks the Tory Rev. Seabury in “The Farmer Refuted.” [Even if a bit unfairly.] I use Hamilton here only as a touchstone of American thought at the time, that rights are unalienable rather than contractual. James Otis would have been better, but a Tory brained him in a tavern and the exquisite mind of Mr. Otis was never the same.Report

              • Avatar Brian Houser in reply to Brian Houser
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                says:

                The problem is that natural law as ascribed to human behavior is mostly a myth. Philosophers can come up with all sorts of wonderful-sounding “universal truths” but in the end, it’s all just in their heads.

                Is man at his best when he is free? Hard to say! I certainly can imagine some people being a lot better off if someone was directing their actions. In fact, isn’t that largely what religion is about?

                Are men better when they are treated equal? Hmm, isn’t that what “No Child Left Behind” is about? That hasn’t gone very well.

                I’m not claiming Hobbes had all the right answers, but I respect his refusal to rely on made up concepts to define society.Report

              • Avatar Stillwater in reply to Brian Houser
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                says:

                Is man at his best when he is free? If it appears so, an argument for liberty, then.

                When he is equal? As I think about it, perhaps man is best when he treats his fellow men as equals.

                You preface this with the claim that a posteriori derived “righs” are fine on the natural law account. If that’s the case, then there is no ineresting sense of natural law, since experience and practice determine what actually constitute rights. And not just merely experience and practice. The underlying claim is that conventions which lead to successful outcomes – again, determined by agreement – are the basis of rights.

                That just means rights are analyzed as agreement made between people that have proven over time to have utility. sufficient utility to be regarded as fixed structures in social arrangements.

                I don’t see anything natural about this. I mean, the conventionalist about rights doesn’t deny that biology and psychology play a role in determining the agreements people make. In fact, it’s the cornerstone of the whole theory.

                Maybe I’m not understanding you here.Report

              • Avatar Stillwater in reply to Brian Houser
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                says:

                Or I should say: I see lots of things that are natural about it, but nothing that’s “natural”. Natural rights are, it seems to me, differentiated from constructed rights because they are: a priori derived, immutable, self-evident, self-justifying, sui generis, inherent properties of individuals.Report

              • Avatar Tom Van Dyke in reply to Brian Houser
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                says:

                Mr. Still, I make it you’re sincerely trying and not jerking the discussion around. Natural law is like trying to tell a stranger ’bout rock’n’roll.

                Even Aristotle can’t quite get there. “Right reason,” he calls it. It remains ineffable because you can’t tell a blind man why a sunset is beautiful.

                It just doesn’t reduce to words. The human experience doesn’t reduce to words, no matter how hard we try.

                The fellow in front of you trips and falls. You help him up. You shouldn’t feel especially good about it, after all, it’s our duty, it’s our social contract, whathaveyou.

                But you smile for having helped him up, and he smiles because you did.Report

              • Avatar Stillwater in reply to Brian Houser
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                says:

                It just doesn’t reduce to words.

                This doesn’t make any sense to me. It’s the chicken sexer theory of rights. I don’t by it.

                Also, what you wrote upthread is a constructivist account of rights. I’d’ve thought you’d have something more compelling by way of response than “rights are ineffable”. I mean, you’re the one arguing that they’re self-evident, yet neither introspection nor focused concentration reveal them to me.Report

              • Avatar Murali in reply to Brian Houser
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                says:

                Well, everything reducing to words is not really all bad you know. Words are not just sounds, but refer to particular concepts and objects. If the concepts and objects a word needs to refer to in order for a sentence to be true matches up with concepts and objects that we normally use the word to refer to, then we have got something non-trivialReport

              • Avatar Jason Kuznicki in reply to Brian Houser
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                says:

                Hobbes had it right, in that the only logical way to ascertain rights is by what is truly known. Discerning them from a higher being for which there is no evidence is folly.

                So if I successfully murder you, then you never truly had a right to life at all? And thus I’ve done no wrong?

                Good to know…Report

              • Avatar Brian Houser in reply to Jason Kuznicki
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                says:

                Jason, essentially, you are correct. In the USA, I have a right to life because my predecessors delegated authority to the government to help protect that right (which they claim was “natural” but I contend was declared). Therefore you will likely suffer consequences for violating my right to life.

                However, in the absence of that government, my claim of a right not to be murdered is only as good as my ability to protect myself.

                It’s difficult for us to step outside our current sentiments of equality, but as recent as 150 years ago in this country, blacks had no right to life (other than that provided through property rights of their owners). In earlier cultures, many people had no such rights and lived at the discretion of their rulers.

                Outside any legal definitions that may be in place, whether you’ve done wrong by murdering me is a moral decision each person must decide on their own.Report

              • Avatar Jason Kuznicki in reply to Brian Houser
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                says:

                Jason, essentially, you are correct. In the USA, I have a right to life because my predecessors delegated authority to the government to help protect that right (which they claim was “natural” but I contend was declared). Therefore you will likely suffer consequences for violating my right to life.

                But why did they think it was a good thing to do this, rather than the opposite? Why not just assemble a death squad and go around shooting people? Is there any reason to say that the one is good and the other is bad?

                It’s difficult for us to step outside our current sentiments of equality, but as recent as 150 years ago in this country, blacks had no right to life (other than that provided through property rights of their owners). In earlier cultures, many people had no such rights and lived at the discretion of their rulers.

                If you were alive at that time, how would you have felt about it? If someone asserted that the slaves’ rights were being violated, would you say they were speaking nonsense?Report

              • Avatar Tom Van Dyke in reply to Brian Houser
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                says:

                Outside any legal definitions that may be in place, whether you’ve done wrong by murdering me is a moral decision each person must decide on their own.

                The dictatorship of relativism. All is lost.Report

              • Avatar Brian Houser in reply to Brian Houser
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                says:

                Why did the Founders think it was a good thing to protect life rather than assembling death squads?

                That’s not too hard to figure out. It follows from experience that a world that values life tends to be a less stressful one. He who is on the death squad soon becomes the target. Besides that, there’s the practical issue of needing to build a consensus to get people to buy into your proposed society. I don’t think many would have shown up to the Constitutional Congress if they were proposing a government organized around death squads. But I guess we shouldn’t ignore the fact that the Founders actually did create de facto death squads when initiating the Revolutionary War.

                If I were alive in the time of slavery, how would I feel about it? I imagine my opinion would vary greatly with my skin color. There’s plenty of evidence that many slaveholders had little moral objection to the ownership of humans, especially when they treated them well.

                If someone asserted the slaves’ rights were being violated, I would ask, “what rights?” I see no evidence they have any. But if they asked me if I thought it was fair how they were being treated, I may have a different response.Report

              • Avatar BlaiseP in reply to Tom Van Dyke
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                says:

                Thomas Aquinas Van Dyke, hypocrite lecteur, — mon semblable, — mon frère I have been the one citing Hugo Grotius today. The other scholars are reasonably well known to me, for I have always gone a-questing in search of righteousness in the general direction of that Eldorado known as the Rights of Man.

                Hobbes is only hated by those who misunderstand him. I will freely admit to admiring his ruthless dispatch and butchery of many a bleating little spring lamb frolicking across the political pasture. I know enough of mankind to genially reduce him to a vicious simian. Natural Right is nonsense and in your little black heart you know this is true, as surely as you know your own shit stinks, seated upon the throne in the House Where All Must Eventually Go.

                As for the charge of Impiety, this is generally a charge only levelled by those challenged by Reason. If my visions of the Almighty conform to that of Monty Python’s Holy Grail, wherein the Bearded One despises grovelling, it is only reinforced by the superb doubt of Stephen Hawking, striding bravely across the surface of a titanic black hole, confined to his wheelchair, the sharp swords of Christopher Hitchens and Daniel Dennett, effortlessly beheading mythical dragons like St George of old, Galileo, Da Vinci, Einstein and Bose and Kolmogorov, these are my heroes, stars shining in a firmament to which you remain entirely blind. If there is a Supreme Intelligence, it stands to reason he is Intelligent. Any other God is nothing but the province of the stupid.

                If man is created in the image of God, as we are told, then we are first tasked to understand good and evil. This task is ours. We are our brothers’ keepers. Those brothers included our despised brethren, though if we knew it, we are all equally despicable and equally deserving of redemption. We will first become Rational when we have quit leaning on Ceiling Cat to dispense justice and take that task upon ourselves.Report

              • Avatar Tom Van Dyke in reply to BlaiseP
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                says:

                Were you genuinely erudite or clever, Blaise, you’d addressed your insults to Alexander Hamilton. Try to keep up. Crudity without wit is boring. This can be fun or it can be a misery. Pls choose the former, sir; you are fine company when you do.Report

              • Avatar BlaiseP in reply to Tom Van Dyke
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                says:

                I am neither particularly erudite nor am I clever. Time and events have made me what I am. Fun or misery? I am put in mind of that old joke about the ideal relationship between a sadist and a masochist. The masochist groans “Beat me! Beat me!” The sadist cruelly replies “Never! Never!”

                I am no fit company for anyone, any more. The Japanese say old men talk to themselves, finding nobody else more intelligent in the room to engage in conversation.Report

              • Avatar Tom Van Dyke in reply to BlaiseP
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                says:

                Blaise, Kalev Pehme was my friend. You’d have agreed on virtually everything, probably couldn’t bear to be in the same room with each other. So it goes.Report

            • Avatar Murali in reply to BlaiseP
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              says:

              Actually MrRock is right on this one. Self evident propositions are basically apriori. That’s why when doing moral theorising Kant’s project is so important. First we fix what we are talking about when talk about morality and justice and then we ask ourselves what moral principles must be like in order to fit with the concept of morality and justice which we originally fixed up front.Report

              • Avatar BlaiseP in reply to Murali
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                says:

                Kant would saddle us with Duty. That’s no longer theory, that’s a commandment. A soldier believes his duty is to shoot the enemy. In that moment, he is no longer acting according to his own imperatives but those of others.

                Japanese has two wonderful words, ON and GIRI. ON is the pleasant part of friendship and intimacy, the use of the insider tenses of the language, the sharing of secrets, the cooperation of known entities. But then there’s GIRI, the part of friendship which requires us to waste our weekends helping our friends move from one apartment to another, the duty parts of friendship which oblige women to purchase bridesmaid’s gowns and spend their hard-earned savings and vacation time going to Bali for their friends’ weddings.

                Kant reduces morality to GIRI duty. That’s where he fails.Report

              • Avatar Murali in reply to BlaiseP
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                says:

                We can appreciate kant’s broader aim of deriving the content of morality from its form without necessarily agreeing with the particular conclusions that Kant derives. (Though as unpleasant as Kant’s views on the centrality of duty to morality may seem, they are not as easy to refute as you think)Report

              • Avatar BlaiseP in reply to Murali
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                says:

                Kant is easily refuted from the historical record and our own lives. How often have we succumbed to the essential hypocrisies of half-truths and grudging obedience to custom, knowing the consequences of behaving in accordance with the truth would serve no good end?Report

              • Avatar Stillwater in reply to Murali
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                says:

                Kant isn’t easily refuted, but that’s partly because his conceptual scheme is so complex. The basics tho – universalizability, autonomy, kingdom of ends, the role of pure reason, all that – admit so many counterexamples and other problems deriving from the concept of pure reason (pure reason is sufficient for morality, but pure reason also seems to be necessary for morality???) that it seem to me the theory can’t be sustained.

                But appeal of categorical imperatives lingers on.Report

          • Avatar Alex Knapp in reply to Reggie Rock
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            says:

            The propositions “all bachelors are unmarried” is self-evident, as is “all humans have desires/preferences”.

            “All bachelors are unmarried” is a tautology.

            “All humans have desires/preferences” is a claim about fact, which can be determined through empirical analysis. On its own, however, it is not self-evident.

            Moral agents have desires that they seek to fulfill within a context

            What’s a moral agent? How do you know that they have desires? How do you know that they try to fulfill those desires?

            moral agents cannot possess another moral agent without subjugating their desires

            What do you mean by possess, exactly? There are a number of interpretations here.

            What if the second moral agent desires to be possessed?

            one moral agent cannot appeal to any authority for his claim over the desires and actions of another moral agent save for brute force

            Why not?

            brute force does not legitimize an action

            Why not?

            Moral rights are normative, they tell us how we ought to act.

            So a right is a moral duty to perform an action?Report

            • Avatar Reggie Rock in reply to Alex Knapp
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              says:

              “All bachelors are unmarried” is a tautology.

              All bachelors are unmarried is both a tautology and self evident. Another example of a self evident truth would be “a whole is greater than, or equal to, its parts” or “an object that lacks any properties of an apple cannot be an apple”. These are self-contained epistemic statements and axioms, in other words self-evident.

              “All humans have desires/preferences” is a claim about fact, which can be determined through empirical analysis. On its own, however, it is not self-evident.

              It’s not the best example, I’ll admit, but humans by definition have desires preferences because they are defined as sentient conscious beings. If I were to say that humans have wings you don’t need to present me with every human or use induction from majority of humans to say I’m wrong; humans are defined as having no wings.

              However let me rephrase. “All beings that have preferences seek to fulfill those preferences”, must be true because if you did not seek to fulfill it then it would not be preferable/a preference. I’m not denying that facts about human beings and human nature must inform our moral reasoning but basic logic and a few simple axioms can be used to derive a right a la the vast majority of moral philosophers in the past 300 years.

              What…

              I was sketching the path a potential argument could take, not making an argument. I could have just said A exists, A cannot be C, C cannot precede A unless A can be C, there we cannot act as if C can come before A.

              If you want to argue over the existence of a specific right then that would be worth it’s own thread.

              So a right is a moral duty to perform an action?

              When I say I have a right to protect myself I am saying that protecting myself is morally permissible. When I say you do not have a right to take what is mine without my permission I am saying that what you are doing is morally impermissible. Rights are moral rules for permissibility of conduct. Or as the SEP says, “Rights are entitlements (not) to perform certain actions, or (not) to be in certain states; or entitlements that others (not) perform certain actions or (not) be in certain states.”

              I would argue there is a difference between moral permissibility and moral duty. I have the right to purchase an ice cream cone but I do not have the moral duty to do so.Report

              • Avatar Alex Knapp in reply to Reggie Rock
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                says:

                All bachelors are unmarried is both a tautology and self evident.

                No, because the definition of ‘bachelor’ is ‘unmarried.’ So when you say ‘all bachelors are unmarried,’ what you’re really saying is ‘all bachelors are bachelors.’ That’s just a tautology.

                It’s not the best example, I’ll admit, but humans by definition have desires preferences because they are defined as sentient conscious beings.

                You’re incorporating ‘having desire’ into the definition of human being, so I think we need to take a step back. How do we know that all humans have desires?

                “All beings that have preferences seek to fulfill those preferences”, must be true because if you did not seek to fulfill it then it would not be preferable/a preference.

                Are you saying that you act upon every single one of your desires? Do you believe that all humans act upon all of their desires?

                I would argue there is a difference between moral permissibility and moral duty. I have the right to purchase an ice cream cone but I do not have the moral duty to do so.

                Thank you for the clarification.Report

        • Avatar Jason Kuznicki in reply to Burt Likko
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          says:

          Agreed. “Self-evident” was a bit of a rhetorical flourish by Mr. Jefferson, but not a helpful one as to philosophical clarity.Report

    • Avatar Fnord in reply to Tom Van Dyke
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      says:

      We decided, by convention, that the rights existed independent of conventional acceptance.Report

    • Avatar Jaybird in reply to Tom Van Dyke
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      says:

      I see it as more of a silverish color.

      I’ve said before and I’ll say again: I ain’t a goldbug.Report

  7. Avatar Kyle Cupp
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    says:

    Excellent question, Alex. Let me try to sketch an answer, but, by your leave, I would prefer to speak of “moral truths” rather than “rights,” as rights language, while a useful fiction (like all moral languages), conceals more than it reveals, in my opinion.

    There’s a place for speaking about the “discovery” of (alleged) moral truths, where, for example, a moral norm is derived from premises one holds to be true. In general, though, I find it better to speak of moral truths as disclosed through discernment rather than found through discovery. The basis of morality is matter of seeing, or better yet, hearing. Take the notion that I ought to love. I can’t prove that this idea is a moral truth or even the basis of other moral truths. Instead, when I’m in the presence of family, for example, or when I think of them, I “hear” a call to love them, to desire and work for their good. This obligation is evident to me and furthermore makes sense to me given the consequences my love has for them and love in general has for the world. You could say that the discernment of moral truths–such as “love one another”–requires a kind of faith, a faith that what one seems to hear is really there, so to speak, even if it’s all in our heads.Report

  8. Avatar Burt Likko
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    says:

    My definition of a “right” is “a limit upon the power of the government to effect its will upon a person.”

    For a right to be meaningful, it requires the society of other human beings. And when two or more human beings interact, they are either at war or governing themselves by some sort of rule, even if that rule is as primitive as “I won’t kill you as long as you’re useful to me.” Boom, there’s your right to life. And it is expressed as a rule governing conduct — a government, albeit a very minimal one.

    Do you have “rights” in an anarchy? Against or upon whom are those rights exercised? Others living in the anarchy? If so, then hasn’t some kind of a government (perhaps a very minimal, ineffective one) been established in that the other person against whom the right is exercised now has their range of potential actions limited?Report

    • Avatar Stillwater in reply to Burt Likko
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      says:

      My definition of a “right” is “a limit upon the power of the government to effect its will upon a person.”

      A right also establishes a floor for when the exercise of government power is required, no?Report

      • Avatar Burt Likko in reply to Stillwater
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        says:

        No. It establishes a wall through which the exercise of government power may not penetrate.Report

        • Avatar BlaiseP in reply to Burt Likko
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          says:

          Could it be the case that both are true? Take the case of a crooked cop or judge, f’rinstance.Report

          • Avatar Burt Likko in reply to BlaiseP
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            says:

            I don’t understand. A crooked cop or a judge on the take is acting lawlessly already. So it seems to me this confuses a right with a remedy.

            I get that, for instance, a corrupt judge holds the power of the state and misuses it as a result of the corruption; presumably you suggest that the corrupt judge uses that power in a way that violates someone’s rights (likely to either liberty or property in the case of corruption of a legal official).

            So now we have identified at least two rights — a substantive right to liberty or property, and also a right to fair process — by illustrating the violation of those rights. Should these rights be violated, then yes, corrective action is necessary. The corrupted orders should be rendered void; the prisoner released from incarceration or the property restored. There should be criminal sanctions against those implicated in the corruption to punish and deter.

            Te corrective action is the government acting under compulsion of the law to correct the violation of the underlying right. But the right is for the liberty or the property not to have been taken away in the first place, the right to not have to endure corrupt legal process in the first place.Report

            • Avatar Jason Kuznicki in reply to Burt Likko
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              says:

              Can a private individual violate your rights? It seems clearly the answer is yes. A private individual can kill you just as dead, and that’s a violation of your right to life.

              Rights violations of this type not only do exist, they also authorize the rightful use of defensive force. In governed societies, we all delegate that right to the state.Report

              • Avatar Burt Likko in reply to Jason Kuznicki
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                says:

                Are we talking about tort law here? I don’t challenge that Anglo-American case law frequently uses the term “rights” to refer to claims individuals have against other individuals, without involvement by a governmental entity other than a court to adjudicate them.

                But if we’re going to be philosophically and semantically proper about things, I’d prefer the use of the word “interests,” because as between individuals, they are functionally proprietary. They are assignable. Violations of them are compensable with money in the tort system. And most germane to our discussion here, they are far from universal.

                What I’m referring to as rights against the government are not generally assignable to others, and the remedy for their violation is not monetary the way the remedy for, say, tort claims arising out of an auto-versus-auto collision would be.* They aren’t “property” the way a copyright or a vehicle might be.

                Put another way — if we stipulate to not only the existence of affirmative rather than negative rights, but also stipulate that those affirmative rights apply as between individuals, then doesn’t your “right to life” give you the right to take my property from me so that you can survive when you are starving — because the affirmative nature of your right to life means that I owe you an affirmative duty to safeguard your life?

                * Excepting transactional compensation like reimbursement for attorney’s fees and court costs incurred in enforcement litigation, which confusingly do take on the form of money.Report

            • Avatar BlaiseP in reply to Burt Likko
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              says:

              Been thinking about this one and I think you’re right. You assert a right is a wall through which the government cannot penetrate, contradicting a statement about a floor, or more properly, a threshold for government intervention.

              Let’s agree that the crooked cop is already lawless, though he operates under colour of law when he commits his crimes. In such a case, to whom can the victim repair for justice? What if the district attorney is equally corrupt? I realise this takes us into the Land o’ Tinfoil, but I’ve had to deal with completely corrupted government in the Republic o’ Bananas. It’s a real enough problem.

              Do we have rights in anarchy? Only those rights we can extract by force. But in a law-abiding society, we delegate the enforcement of our rights to government, as in Eisenhower sending in 101 ABN to Little Rock to enforce desegregation, hence a right might establish a threshold for the exercise of government power.Report

        • Avatar Stillwater in reply to Burt Likko
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          says:

          Suppose the rights of an individual or a group of individuals are being systematically violated by another private individual or group. Is government required to act to remedy the harm?Report

        • Avatar Stillwater in reply to Burt Likko
          Ignored
          says:

          Actually, I guess I disagree with this (or I’m confused about what you mean). By my understanding, a right doesn’t constitute a wall through which government can’t penetrate. It establishes a wall through which no one can penetrate (all other things equal), and which government itself is charged with protecting. And part of that is a protection from government itself.Report

          • Avatar Tom Van Dyke in reply to Stillwater
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            says:

            That’s the American scheme, Mr. Stillwater:

            “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it…”Report

    • Avatar Alex Knapp in reply to Burt Likko
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      says:

      Burt,

      And when two or more human beings interact, they are either at war or governing themselves by some sort of rule, even if that rule is as primitive as “I won’t kill you as long as you’re useful to me.” Boom, there’s your right to life. And it is expressed as a rule governing conduct — a government, albeit a very minimal one.

      If I understand correctly, you see rights as being descriptive. That is, one discovers rights by observing how large groups of people behave towards one another. Is that an accurate description?Report

      • Avatar Burt Likko in reply to Alex Knapp
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        says:

        Maybe. I think that we can discover rules that way. But rights? If that is the case, we need to really circumscribe our vision of what “rights” are, to an uncomfortable degree.

        Consider societies that lack freedom of speech. It seems intuitive to us in the West that huamn beings have a substantial degree of free expression, that this is a right possessed by all. But there seem to be lots of societies, especially as we survey history, that seem to get along just fine with restrictions on individual expression that you or I would find well nigh intolerable, places where apostacy or heresy departing from the mandated religious faith are (or were) punishable by death, where lèse majesté or other attempts to mock the political elites is (or was) considered treason.

        If we base our observations of rights on cultures like these, then we’d have to say that free expression is not a right. I’m not willing to say that. But I do think I have to concede that it’s not a transcendent, necessary, immutable, or objective right. As highly as I (or any of us) value that right, societies like contemporary Iran, Tudor-Stuart England, and the pre-Columbian Aztec Empire are or were pretty draconian about things like dissent, heresy, and criticism of leaders. The Iranians seem to be doing pretty well with their industrialized nation; Stuart England chose to reform itself; the Aztecs dominated all their neighbors until the Spaniards came along and it was technological rather than cultural inferiority that caused their polity to collapse. And the Spaniards of that era were not particularly keen about what we would call “free speech” themselves. These societies all did quite well without giving any recognition to the “right” of free expression.

        Similar sorts of things can be said for pretty much any enumeratable “right” that we cherish and value in our society — the right to own weapons, the right to vote, the right to marry and have a family, the right to possess personal property — observation tells us that societies have endured, economies have grown, the arts have flourished, scientific knowledge has been gained, and all other sorts of signals of human flourishing have occured in societies where people have been denied the ability to engage in the behavior we would protect with at least some, and if we broaden the spectrum wide enough across history, pretty much any of the things we would call “rights” today.

        It seems at least as likely to me that “rights” might be mutable legal constructs as they might be objective and universal (if ineffable) facets of humanity. We construct our rights based around our moral ideals and cultural aspirations. Being human and thus imperfect, we are doomed to fall short of fully realizing them. But we’re trying, Ringo. We’re trying real hard.Report

  9. Avatar Tim Kowal
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    says:

    As TVD said, through recognition of our own human nature and by operation of moral logic. I discuss at greater length here: https://ordinary-times.com/blog/2012/05/presuppositional-constitutionalism.Report

    • Avatar Alex Knapp in reply to Tim Kowal
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      says:

      That step is to acknowledge, as a presuppositional (a priori) matter, that it is man’s nature is to acquire knowledge. Man, at his core, is a philosopher, an insatiable seeker of truth about his reality.

      Your a priori statement here is assumed, rather than demonstrated. What if it is not man’s nature to acquire knowledge? What if that’s something that’s merely incidental?

      (That’s leaving aside the rather thornier question of whether man has a nature at all, which is another set of undemonstrated assumptions that I’m leaving aside for the moment.)Report

  10. Avatar Brian Houser
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    says:

    Rights can’t be discovered because they don’t exist.

    It’s always bothered me that the Founding Fathers and others throughout history (and many libertarians today) talk about natural rights as if they’re a given. I see no evidence that such things actually exist. Why can’t I make brand new claims about “rights” I’ve just discovered?

    Declaring natural rights is a way of making a claim of justice or morality without having to do any hard work to actually achieve it. A society without government or other agreements between citizens does not have have a concept of rights. A person effectively only has whatever rights he can defend (or delegate others to defend for him). We can construct governments to protect rights, but those rights don’t exist prior to the formation of that government (or other societal agreement) and are as tenuous as the ability of the government (or citizens) to protect them.

    I grant you that the Declaration of Independence would have sounded a bit less impressive if it said, “We think we deserve better treatment” rather than “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”Report

    • Avatar BlaiseP in reply to Brian Houser
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      says:

      …and look at the Constitution they produced: a complete repudiation of the Declaration of Independence. Thank goodness they had the good sense to tack on the first ten amendments.

      Specially liked this bit: Declaring natural rights is a way of making a claim of justice or morality without having to do any hard work to actually achieve it. Report

      • Avatar dhex in reply to BlaiseP
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        says:

        “Declaring natural rights is a way of making a claim of justice or morality without having to do any hard work to actually achieve it.”

        i disagree, but i think rhetoric is very important to people. it creates much of the territory, as it were, that people fight over. it also helps to be in an environment that involves less flesh and blood fighting and the more bloodless political kind. i do not believe in natural rights in any sense, but i do like a world where most of the others do, and behave accordingly at least some of the time.Report

        • Avatar BlaiseP in reply to dhex
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          says:

          Well sure. Show me a working democracy and I’ll show you hard work, consensus building, platoons of wonks and nattermeisters patrolling the borders.

          Trouble with this Natural Rights business, it encourages weak thinking of the Deus Vult variety. No arguing with such folks. They’re not amenable to reasoning of the sort that might ask “okay, you think gay marriage is not a good idea, tell me why I should think this is true,”

          To which some thoughtful person might respond “This institution should be reserved for mothers and fathers. This is the natural order of things. The institution of marriage is already becoming irrelevant, children are born into the world without a mother and father to care for them.”

          To which I might respond “Your sentiments are understandable. Every child needs parents. Parents need children, too. The natural product of marriage should be a family, if that is what the parents want. Gay couples are really no different in this regard, they too want children. They’re human beings, they love each other, their souls are united and children are a natural expression of this unity.”

          But this argument is not about natural rights. Whatever may be said of gay marriage, an institution I entirely approve of, the children raised in such marriages are not the genetic product of both partners. My support for gay marriage is a synthetic right derived from what I know of marriage and siring children and raising them. I married across racial boundaries. Not everyone approved of that marriage and several more were uncomfortable with it.

          Once my marriage would have been illegal.

          You might like a world where others believe in Natural Rights, though you do not believe in them yourself. I rather like the company of Christians, though I don’t believe in a six day creation. Natural Rights is a cheap short cut around the hard work of thinking, accepting tradition where only reasoned thought can possibly serve as a foundation for progress.Report

          • Avatar dhex in reply to BlaiseP
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            says:

            i think of rights talk, be they of the natural or semi-natural variety, as a very useful social fiction. perhaps the single most useful collective hallucination any group of humans can engage in. we are fortunate to have at least some cultures which keep these sorts of things going and growing, if more slowly than we might like. if people want to believe that rights are inherent “just because”, or because some kinda god did it and that’s that, or just because as a political marketing term it’s pretty good. who doesn’t like natural stuff, after all? it works really good for $9 jars of peanut butter.

            whether it’s lazy or ridiculous or whatever, that’s far preferable to just listening to whomever has the stick for their team at the moment. the latter is a lot of what we have these days, unfortunately.Report

    • Avatar Alex Knapp in reply to Brian Houser
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      says:

      Do you think that justice and morality exist?Report

      • Avatar Brian Houser in reply to Alex Knapp
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        says:

        I do not believe justice and morality exist as common truths. We can often come to a consensus on certain moral principles, but cases of absolute agreement are rare or nonexistent.

        Take killing humans for example. Most people would agree that “thou shall not kill” is a good moral principle. But is it absolute? What about euthanasia? What about capital punishment? War?

        Most of us will sense a similar sentiment of justice or morality for specific actions. But the degree of that sentiment can vary greatly among us and will sometimes conflict.

        Take a law banning smoking in restaurants. Many people applaud the law, claiming a right to breathe fresh air. But the restaurant owner claims the right to have his patrons smoke if they wish. There is no clear moral answer here.

        Do you disagree?Report

  11. Avatar b-psycho
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    says:

    Wanna find out whether something is a right? Prevent it and see whether or not the person you’re holding down tries to kill you.Report

    • Avatar Alex Knapp in reply to b-psycho
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      says:

      So when a cop stops a person from raping someone, and the attempted rapist attempts to kill the cop in response, we therefore conclude that there is a right to rape?Report

      • Avatar b-psycho in reply to Alex Knapp
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        says:

        I figured I wouldn’t have to explain initiation of force to this crowd. Guess not.Report

        • Avatar Alex Knapp in reply to b-psycho
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          says:

          I’m just basing my observation off of the criteria you offered.Report

          • Avatar Tom Van Dyke in reply to Alex Knapp
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            says:

            Aw, Alex, I thought it was a fresh and promising riff. Help the man with his argument, don’t choke it in its crib. Grow it first, then kill it!Report

            • Avatar Brian Houser in reply to Tom Van Dyke
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              says:

              I agree. b-psycho’s “prove my right by trying to stop it” is the response that most rings true for me.

              You can discover a right by successfully demonstrating you have it and being stopped from exercising a right proves its nonexistence.

              Using Alex’s rape example above, the cop attempting to stop the rapist indicates there’s no right to rape, although if the rapist does manage to kill the cop and their are no further consequences, you could argue he has demonstrated a right to rape (and to kill), especially if he does it repeatedly with the same outcome.

              Using the right to free speech as an example: write a blog post extremely critical of the U.S. government. What are the consequences? Now write another one directly threatening the President. Same consequences? Does your right to free speech allow both situations with no consequences?Report

              • Avatar Tom Van Dyke in reply to Brian Houser
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                says:

                I dunno, Brian. You and Alex and Mr. Psycho have the floor on this one.

                But I read with interest.Report

              • Avatar Alex Knapp in reply to Brian Houser
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                says:

                So might makes right, in your opinion?Report

              • Avatar Brian Houser in reply to Alex Knapp
                Ignored
                says:

                “So might makes right, in your opinion?”

                Exactly, at the basest level.

                Rights are what you can defend them to be. We can construct governments to attempt to protect our rights for us. But rights don’t exist until you assert them.Report

              • Avatar Jason Kuznicki in reply to Brian Houser
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                says:

                Again, all of this is the same linguistic confusion that I found (and resolved) with Conor on the other thread.

                You are talking descriptively, Brian. The rest of us are talking normatively.

                Tell me, when you fall asleep at night, do you lose all right to your property? A burglar might silently enter your house and take it all. By what right do you protest?Report

              • Avatar Brian Houser in reply to Jason Kuznicki
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                says:

                “Tell me, when you fall asleep at night, do you lose all right to your property? A burglar might silently enter your house and take it all. By what right do you protest?”

                I’ll assume you mean in a society in which there is no government, (since the answer for me today is that I live in a country that helps protect property rights). If my things are stolen in the night, I can claim a right to them all I want, but if no one sides with me, that doesn’t mean much. The only way to establish a right is to construct a society whereby a consensus emerges that establishes such.

                A normative discussion of rights is a somewhat interesting philosophical exercise but it doesn’t have much practical application because a quest for “universal truths” regarding rights will never bear fruit.Report

              • Avatar b-psycho in reply to Brian Houser
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                says:

                I’d rephrase. The philosophical existence of rights doesn’t presuppose the in practice relevance of rights: you have to fight, or at least be willing to fight, for that.

                See, I freely admit to being an absolutist of sorts on rights. Anything not involving initiation of force I believe is your right to do. Yet to varying degrees, different cultures have social or even legal blocks against acts which in my view should have no block on them whatsoever. Do people defy those restraints? Yes, to whatever extent they can. Sometimes they can’t stray as far as they’d like to because of how strict the restraints are. The rights exist, the social and/or civil authority there just doesn’t care.

                The initiation of force issue is really an ongoing struggle of numbers versus shamelessness in wielding power. No one fights for a “right” to initiate force in and of itself, they simply do it & make up another reason. You have enough people who believe that reason you get war.Report

              • Avatar Jason Kuznicki in reply to b-psycho
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                says:

                I’d rephrase. The philosophical existence of rights doesn’t presuppose the in practice relevance of rights: you have to fight, or at least be willing to fight, for that.

                Of course. No one disputes this.

                What appears to be in dispute is the idea that the government creates rights, rather than enforcing and abiding by them. Should the government cease to protect women’s right to vote, then women would lose it — and there is no normative claim they could ever make to establish that the government had done badly.

                If that is the case, then the government literally can do no wrong.Report

              • Avatar Brian Houser in reply to b-psycho
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                says:

                Yes, I claim that rights are created rather than always in existence. But the rights are created by people, not governments. People make a claim of rights and then may delegate the protection of them to a government.

                So, government can clearly go astray by not following the will of the people, and your statement should be altered to “If that is the case, then the people literally can do no wrong.”

                And therein lies the real question: in a world with no universal truths, how do we determine “right” and “wrong”, and is there even such a thing and rights and wrongs? But I suggest that is a separate discussion only tangentially related to rights.Report

              • Avatar Jason Kuznicki in reply to b-psycho
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                says:

                In a word with no universal truths, we determine right and wrong through force of arms.

                You are lucky to live in a civilized society, in which you may bluster about that state of affairs all that you like, without ever once having to experience it. What allows you that security? It’s that our government has recognized the individual rights that you would deny.Report

              • Avatar Roger in reply to b-psycho
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                says:

                Jason: “In a word with no universal truths, we determine right and wrong through force of arms.”

                You seem to be arguing that because the outcome is distasteful to you, that it must not be true. However, I disagree with both your premise and your conclusion.

                Several commenters have mentioned that you are conflating two things under one term and that this is leading you into a dead end. That is that there is such a thing as a good rule of human interaction, and there is an enforced rule of human interaction. You are using “rights” for both of these. This leads you to the conclusion that absent enforcement, that the thing does not exist. You reject that and then seem to assume that the only way out of the dilemma is to assume a universal truth.

                I would suggest that there are good conventions of human interaction. We discover these over time. We then make these sacrosanct by calling them rights and we establish enforcement mechanisms, one of which is the state.

                Good rules of interaction are not best discovered by force of arms. They are discovered by trial and error and rational debate and perhaps even by cultural evolution. They may indeed be enforced by force of arms though.Report

              • Avatar Jason Kuznicki in reply to b-psycho
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                says:

                You seem to be arguing that because the outcome is distasteful to you, that it must not be true. However, I disagree with both your premise and your conclusion.

                Not at all. I find the conclusion “we determine right and wrong through force of arms” not merely to be distasteful, but also to be absurd. Is it wrong to eat babies? Not if no one’s around to stop me. But if someone is, then we have to see who is stronger. But then if someone else comes along, who is stronger still and who shares my tastes, the truth shifts again.

                “Might makes right” appears to be a way out of moral relativism, but really it’s a surrender to moral relativism. The truth in this doctrine shifts constantly, and that’s why it has to be rejected.Report

              • Avatar Alex Knapp in reply to b-psycho
                Ignored
                says:

                Why is it wrong to initiate force?

                For example, let’s say I’m walking down the road, and I observe a man beating his wife. I’m not being directly threatened, so is it wrong for me to initiate force and stop the man from beating his wife?Report

              • Avatar Alex Knapp in reply to b-psycho
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                says:

                Jason,

                But what criteria should we establish the universal moral truths and rights that you claim exist?Report

              • Avatar Roger in reply to b-psycho
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                says:

                It seems like you stopped reading at my first paragraph. I am clearly not arguing for might makes right either, nor am I a moral relativist.

                My point is that there is the act of eating babies, which we agree is wrong, and the act of enforcing not eating babies. Not enforcing it doesn’t make it good, it just makes it unenforced.

                We value living in a world where people refrain from eating each other. We value it so much that we believe the freedom from cannibalism is sacrosanct. We also value setting rules against it and building institutions to enforce these rules. One such institution is calling it a human right The enforcement is not what made it valuable. The failure to enforce it doesn’t make cannibalism a good idea. Nor does failure to call it a human right make it desirable.

                There are good actions.
                There are actions that are so good that they should be considered sacrosanct. We can call these human rights.
                There are human rights which are enforced, and rights which are not.
                All good actions aren’t rights, and all rights aren’t always enforced.Report

              • Avatar Jason Kuznicki in reply to b-psycho
                Ignored
                says:

                Why is it wrong to initiate force?

                For example, let’s say I’m walking down the road, and I observe a man beating his wife. I’m not being directly threatened, so is it wrong for me to initiate force and stop the man from beating his wife?

                You were not the one who initiated force there. You were intervening in defense of the woman’s right not to be assaulted. Although we delegate the legitimate use of force in our society to the state, there is a very good chance that the state will look at your actions and exonerate you. Which is as it should be.Report

              • Avatar Jason Kuznicki in reply to b-psycho
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                says:

                My point is that there is the act of eating babies, which we agree is wrong, and the act of enforcing not eating babies. Not enforcing it doesn’t make it good, it just makes it unenforced.

                And my claim is that rights are not about what is, but about what should be. A right is a claim about what should be, or what is owed to people, in an ideal society. It’s not a description of the current society, or of any other society.

                Why this is so mysterious to so many, I just can’t fathom.Report

              • Avatar Stillwater in reply to b-psycho
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                says:

                Jason, you’re giving a meaning to what right do, an analysis of their purpose (normative constraints). You also think – unless I’m mistake – that people simply have them as intrinsic properties (that’s an is claim), not that they ought to have them.

                I think that’s what Roger’s comments are pointing at. Not the conception of rights as normative constraints, but what they in fact are (socially agreements between individuals in a social context or basic, intrinsic properties that people possess necessarily).Report

              • Avatar Roger in reply to b-psycho
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                says:

                “And my claim is that rights are not about what is, but about what should be. A right is a claim about what should be, or what is owed to people, in an ideal society. It’s not a description of the current society, or of any other society.
                Why this is so mysterious to so many, I just can’t fathom.”

                I agree 100% with what you are saying here. Rights can be defined as sacrosanct claims about how we should treat people in an ideal society. But there is also the definition of rights as being the rules that are actually in effect.

                We could agree that we should have a right to property. The state can say we have a right to medical care. You and I would say the latter right is foolish. It leads to bad results.

                To quote James… “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.”Report

              • Avatar Alex Knapp in reply to b-psycho
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                says:

                Jason,

                You were not the one who initiated force there. You were intervening in defense of the woman’s right not to be assaulted. Although we delegate the legitimate use of force in our society to the state, there is a very good chance that the state will look at your actions and exonerate you. Which is as it should be.

                Why do I have the right to use violence to defend the woman?Report

              • Avatar Stillwater in reply to b-psycho
                Ignored
                says:

                Why do I have the right to use violence to defend the woman?

                That’s a really good question.Report

              • Avatar Roger in reply to b-psycho
                Ignored
                says:

                To the extent we agree that using violence in defense of the woman makes for a better society, we agree upon this as a useful convention.Report

              • Avatar Stillwater in reply to b-psycho
                Ignored
                says:

                Roger, I agree with that. I think it’s a difficult question for the natural rights theorist. Since rights entail only negative duties, there is no affirmative obligation – read: justification – to use violence in defense of the woman such that you’re not violating the rights of the attacker by defending her.

                At least, I think that’s the potential problem here, and what Alex was getting at in the question.Report

              • Avatar Mike Schilling in reply to b-psycho
                Ignored
                says:

                Why do I have the right to use violence to defend the woman?

                Go a bit further, and say the woman is being beaten to death. Stipulate that you have the right to use force to defend her. Do you have an obligation as well? (This isn’t the same as the question of whether she has a right to your help. I’m asking about the duty you owe to yourself, your community, or your God, not the duty you owe to the woman.)Report

              • Avatar dhex in reply to b-psycho
                Ignored
                says:

                “In a word with no universal truths, we determine right and wrong through force of arms.

                You are lucky to live in a civilized society, in which you may bluster about that state of affairs all that you like, without ever once having to experience it. What allows you that security? It’s that our government has recognized the individual rights that you would deny.”

                well, that security waxes and wanes depending on what part of america you live in, and not only because of the aforementioned governmental recognition or dis-recognition, but because of what the immediate culture of one’s neighbors tell them is and is not real.

                i know you mean that first part with some bitterness and no doubt some disgust as well, but that seems as simple an explanation of the reality of human affairs that it should probably be the first line in every social studies textbook printed in the united states.Report

  12. Avatar Murali
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    says:

    The way to discover rights is by asking what rational, mutually disinterested parties behind a veil of ignorance that obscures the particular features of their condition* would choose.

    The actual and proper justification for this is too long to fit into a comment (Even as a post on its own, it would be fairly long) This is the kind of stuff that goes into my master’s thesis.

    The rough idea is that when investigating the issue of what the principles of justice are, we simplify th issue by ignoring claims made on other people’s behalves. If I were built such that I was willing to sacrifice my own interest in favour of yours, then not only would we not have a genuine conflict of interest, the question of justice would not even apply. (The problem for which the principles of justice are to be solutions only arises when people make conflicting claims against one another) This gets us the mutually disinterested part.

    Given that the principles of justice are fundamentally moral principles, they apply to everyone. i.e. in a situation where John wants X and Bill wants Y (where both X and Y cannot be realised simultaneously), then if it is the case that X is such that it trumps Y, then it must be the case that X trumps Y even if it is Bill that wants X and John that wants Y. This covers the veil of ignorance.

    *their sex, race, orientation, religious persuasion, talents, preferences, what kind of family they will be born into, what proportion of the population they will comprise etc.Report

    • Avatar Alex Knapp in reply to Murali
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      says:

      So, if I understand correctly, morality and rights should be constructed, not as an objective thing, but rather a mutual understanding that these are the things everyone would agree to in a situation in which no person had knowledge of their circumstances?Report

      • Avatar Murali in reply to Alex Knapp
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        says:

        Errm, while that is traditional interpretation of Rawls, it still seems that what some kind of highly specified and artificial person will choose behind a carefully specified veil of ignorance is about as objective as pythagoras’s theorem right?Report

        • Avatar Alex Knapp in reply to Murali
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          says:

          it still seems that what some kind of highly specified and artificial person will choose behind a carefully specified veil of ignorance is about as objective as pythagoras’s theorem right?

          Not exactly. After all, you can measure the sides of the triangle to see if the theorem accords with reality.

          However, there’s no such thing as a veil of ignorance. It’s merely a thought experiment.Report

          • Avatar Murali in reply to Alex Knapp
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            says:

            Objectivity is not the same as empirical verifiability. Whether or not there are finitely many prime numbers is not an empirically verifiable, but it is still an objective fact (whichever one turns out to be true)Report

            • Avatar Alex Knapp in reply to Murali
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              says:

              But the veil of ignorance isn’t in the same class of reasoning as a mathematical proof, either, is it? It depends on a number of assumptions and suppositions, right? So by what criteria do you determine its validity?Report

              • Avatar Murali in reply to Alex Knapp
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                says:

                But the veil of ignorance isn’t in the same class of reasoning as a mathematical proof, either, is it? It depends on a number of assumptions and suppositions, right?

                So do mathematical proofs. What is a point? What is a line? What is a flat plane? Pythagoras’s theorem depends on a whole host of assumptions. Once we carefully spell out what those assumptions are, pythagoras’s theorem automatically applies.

                Now, as I have mentioned earlier, I cannot demonstrate to you the validity once and for all of the veil of ignorance (although if you want a rudimentary effort you can look here which by sheer coincidence is my first guest post and was written exactly one ago.Report

              • Avatar Alex Knapp in reply to Murali
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                says:

                I’ll read your post. Thanks.Report

  13. Avatar Jaybird
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    says:

    I’ll try this. Rights are an emergent property.

    It’s this, in conjuntion with that, in conjuntion with that other thing, and how they all work together is what gives us water. And, on top of that, it freezes in a ring… which means that it’s less dense when solid than when liquid! Whoa! Topsy turvy!

    To focus on one thing and to say “I don’t see rights here!” would be like looking at a proton and wondering where the water was.

    There are a number of little things that seem to indicate Rights but let’s look at some of the highlights from one of the more popular stories around.

    Man certainly appears to have eaten from the tree of the knowledge of good and evil. Without getting into the whole “eating shrimp is wrong!” “No, judging people for eating shrimp is wrong!” argument, there is a common thread in all of the rugs out there that involve good existing, evil existing, and the ability to tell the difference.

    The Ademic Impulse remains strong to this day. This *FEELS* like it’s an important piece of something.

    From the another supporting character is the insight that the mind is its own place and can in itself make a heaven of hell, a hell of heaven. For example, if two people happen to say “we’re married”, how hollow does “no, you’re not!” sound in response? It certainly sounds like someone without the competence to make that statement, at the very least.

    There’s also the ad absurdum of running with nihilism. If rights don’t exist, we can say all kinds of things, can’t we? “(members of group) don’t have any right to (thing white heterosexual men enjoy as part of white male heterosexual privilege as it exists).” Sure, it can be argued for a time in the Ivory Tower (and the fun things that you could put in those parentheses are always good for a laugh when you see your interlocutor’s eyes widen!) but eventually you have to go to Meatspace and those fun sentences melt when they hit the front door like cotton candy.

    These are things that I can see when I interact with them at large. Pulling off a proton and saying “Where is the water?” misses the dynamics, I’d think.Report

  14. Avatar Christopher Carr
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    says:

    “Do you think that rights are discoverable?”

    No, but of all the sets of first principles that we’ve come across, assuming natural rights seems both rationally and empirically to lead to the best outcome.Report

    • Avatar Alex Knapp in reply to Christopher Carr
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      says:

      How do you define “best outcome”?Report

      • Avatar Christopher Carr in reply to Alex Knapp
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        says:

        Murka.

        Joking but also serious. If we place something into the level of sacred above us – i.e. “divine” or “natural, it follows that we’re less likely to see that as contingent to some greater purpose – i.e. lebensraum, communism, etc.Report

        • Avatar Alex Knapp in reply to Christopher Carr
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          says:

          Let me clarify –

          What criteria do we use to determine that one social system is superior to another?Report

          • Avatar Roger in reply to Alex Knapp
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            says:

            Alex,
            Here you get to the tough question. Social systems are built up of the interactions of people. Good systems are ones which allow people to optimize their goals and values. To flourish according to the goals and desires of the people concerned.

            The perfect society would be one which allowed everyone to achieve every conceivable goal. All would flourish. Of course perfection is a utopian folly. The perfect society may be impossible, but better societies are not.

            Morality concerns how we interact with each other. There are some ways of interaction which lead to bad results of those taking the path, there are other ways of interacting which lead to better results. Over time we learn the rules and mores and institutions and laws and “rights” which lead to better results.

            See my comments in the bottom for more.Report

  15. Avatar Reggie Rock
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    says:

    I find the alternative to the rights approach rather distasteful (not that that in and of itself is proof against ti). Let’s say that a farmer grows his corn and harvests it.A thief comes along and demands the corn on penalty of death.

    Rights theory says that this is wrong because the farmer is acting in accordance with his nature and doing nothing to violate the rights of anyone else while the thief is trying to claim the corn as his property. Why would the corn be his? Why would it be moral or just that he have control of the corn. The only justification is force.

    Without rights there is no way to say that it is morally wrong that the thief stole the corn. The only thing you can do is to say that you don’t like it or that you will gather together a posse with even more force and stop the thief because you do not like it.

    Obviously the thief will take the corn regardless. The difference is that rights are justifications derived from self-evident truths (both the thief and the farmer cannot have complete control over the corn at the same time), facts about human nature, facts about reality, and reason.

    Rights are moral concepts and without rights you cannot say that stealing is wrong, you can only say that you don’t like stealing. Can you develop a society based off of this? Of course, but it’s a capricious society that is subject to mob rule and manipulation.

    Quite frankly I find your question actually rather disingenuous. Instead of engaging with Locke, Kant, Spooner, Hegel, Nozick, Rothbard, or any other natural rights theorist you snipe at random comments. Saying that I don’t make my case is not enough, you need to actually argue with the thinkers that have defined natural rights in the modern world. If I go to a blog and slap down commenters arguing poorly against the idea that the external world exists I still haven’t actually made an argument against the concept, only against those person’s ability to argue.Report

    • Avatar Brian Houser in reply to Reggie Rock
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      says:

      But here’s the problem: the thief is hungry. Why is it not just as “self-evident” that the thief deserves the corn because he needs it more than the farmer?

      But let’s assume he’s not hungry and is really just a greedy thief. Why do you need rights to make a moral evaluation of the situation? It follows quite logically that if we allow the thief to take the corn, everyone else will feel entitled to steal as well. And the society will become one with no real sense of property and one in which the most cunning thieves will prevail, leaving the weak with nothing. It’s not hard to realize that’s not an ideal environment to live in.

      Why is it so important for me to say stealing is “wrong”? It seems sufficient to say I don’t like it and I understand the poor consequences of allowing it.Report

    • Avatar Alex Knapp in reply to Reggie Rock
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      says:

      Without rights there is no way to say that it is morally wrong that the thief stole the corn.

      The Ancient Hebrews forbade stealing, but they didn’t have rights theory. So I’m not sure that your dichotomy is accurate.

      Quite frankly I find your question actually rather disingenuous. Instead of engaging with Locke, Kant, Spooner, Hegel, Nozick, Rothbard, or any other natural rights theorist you snipe at random comments.

      I’ve read them all. I know what they think. What I don’t know is what this community thinks. So I was curious.Report

  16. Avatar Roger
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    says:

    Wonderful question, Alex.

    The problem with the word “discovery” is that it sounds like it was laying there objectively like a solitary rock on the beach just waiting for us to stub our toe on it. Morality isn’t about an item, it is about a relationship between living things. The discovery or creation is about learning how humans can interact in ways which lead to that which we value.

    Humans can accomplish infinitely more together than apart. But to do so, we need rules and protocols. We need good conventions. These allow us to interact in ways which promote mutual problem solving while minimizing the creation of negative effects or side effects.

    Some call these foundational conventions “rights” and they objectify them as Platonic essences embedded on humans. I believe this is a useful fiction. The reason it is useful is that foundational conventions tend to work better when treated as something that is almost sacred. The best human conventions are not ones that we obey except when we can get away with not obeying them (when we can cheat), they are best when we are convinced we should always obey them even when nobody else is watching or can help to stop us.

    A good social convention is one that leads to good human outcomes and to do so it needs to be seen as almost sacred. We call them rights.Report

    • Avatar Brian Houser in reply to Roger
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      says:

      Wow, what an elegant and thoughtful response. I couldn’t have come close to saying it that well. To me it seems all this discussion really just boils down to those four paragraphs.Report

    • Avatar DavidTC in reply to Roger
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      says:

      ‘Rights’ are like ”free will’. A useful fiction when speaking, but not actually anything that anyone can point at, and if you actually start dissecting the concept, you’ll just end up at some random tautology.

      Frankly, I think we’d be a lot better off if we removed about 75% of the talk of ‘rights’ in political discussions, as about 3/4ths of what people think are ‘rights’ shouldn’t be. I say ‘should be’ because it’s useless to talk about what ‘is’ a right. Rights are not actually real.

      Talking like that is harmless, except that as politics becomes increasingly polarized, people start thinking in terms of ‘rights’, which is, in terms of absolutes. Even many of the rights laid out at the formation of this country are not intended to be _complete_ absolutes. (Freedom of association is limited via imprisonment. Speech can be punished with libel or copyright laws. Habeas corpus can be suspended in times of insurrection or invasion. Etc.)

      And it’s even worse when people just start _inventing_ rights, like some sort of right to not be taxed. (1) And the rather odd abortion thing. I actually can see a ‘right to total body anatomy’, and in fact I’m in favor of it…and where’s my right to take LSD in private? Oh, for some reason, we’ve only decided to apply this right to ‘privacy’ (Which is a bad name.) in one specific example. Seriously?

      I have to wonder how much better off we’d be if _people_ would talk about rights basically the way that courts talk about laws the discriminate based on gender: Is there a compelling reason for this law that we can’t do any other way?

      And also if people would stop just pulling ‘rights’ out of thin air, like a right to not see gay people being all gayish and whatnot.

      1) Which is why I personally find Robert’s logic with the mandate rather hilarious. (Also I find it funny because I was arguing _of course_ it was a tax.) Hey, look, the Chief Justice of the Supreme Court says the government has the power to tax.Report

  17. Avatar Michael E
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    says:

    For me, the whole thing boils down to this:

    I don’t wan’t other people making me do things against my will. And, for no other reason than I think it’s “fair” to do for others what I expect them to do for me, or to *not* do to others what I don’t want them to do to me, then I restrain myself from making others do things against their will, except in self-defense and in defense of those who are, in my judgement at the time, unable to defend themselves from violence or coercion.

    Whatever legal fictions are created in order to move society along in this direction are fine by me.

    No “natural rights” – because when I look at the rest of nature, I don’t see anything one could call a “right.”

    No “god given rights” – since there is no god.

    The only rights that exist are those we agree to codify into our laws, assuming we agree to have laws in the first place. Ultimately, a civil society is one where the concept of “might makes right” is humanized, if you will, into the concept of “might is delegated to the government to use against those who would use might against the rest of us without our consent. If it’s the government using might against us without our consent, then we reserve the right to use might against the government.”

    But a bunch of people in the late 1700s already went through this discussion, and came up with some pretty good ideas on who to make it work, IMO.Report

    • Avatar DavidTC in reply to Michael E
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      says:

      But a bunch of people in the late 1700s already went through this discussion, and came up with some pretty good ideas on who to make it work, IMO.

      Indeed. There are a few rights that need to exist simply because we cannot have any sort of democratic society without them, and they were all pointed out hundreds of years ago.

      They basically boil down to ‘Freedom of thought and discussion’ (1st amendment) and ‘Disallowing the government from singling people and groups without due process’ (Habeas corpus, 4th-8th, 13th-15th, 19th).

      And there’s one other that _isn’t_ in the constitution: The right to actually know what the hell the government is doing. (This was sorta assumed hundred of years ago.)

      Once you have those things, plus basic voting rights, people can fix any problems the government develops. But all of those rights are legal fictions. (In fact, the _government_ is a legal fiction.)Report

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