What is a "Right"? - Revisited - Part II.

(Continued from Part I)

There appear to be at least two interdependent questions here: the "realness" of rights, and the source of rights. There is a third, associated question: the "rightness" of rights. Let me begin by stating that the original post that spawned all of this was a bit too simplistic. Yes, I did state that "A 'right' is what the majority of a society believes it is," and I'll come back to that, but I am in agreement with Ayn Rand in her statement:

A 'right' is a moral principle defining and sanctioning a man's freedom of action in a social context. There is only one fundamental right (all others are its consequences or corollaries): a man's right to his own life.

That right is, in my opinion, REAL, but it can be and has been trampled, folded, torn, spindled, mutilated, and - worst of all - unrealized, for the overwhelming majority of Man's existence upon the Earth.

The source of this right?

Reason.

Or Nature. Yaweh. Christ. Vishnu, Mother Gaia, Barney the Dinosaur. I don't know, nor do I care overly much, but reason works for me.

I believe that right is "real" because I believe that - given the chance - average specimens of humanity will conclude through reason that they are of value (to themselves if no one else), and that their physical selves and the product of their labor belongs to them and not another. However, it is difficult to build a society based on this belief alone. (The AnarchoCaptialists think it can - and should - be done, but admit that they don't know how.)

History shows us, though, that for most of our existence this right has not been exercised. The right has been unrecognized by the majority in the societies in which people lived - from the tribal all the way through today's modern Marxist states. The strong ruled the weak, and owned, de facto if not de jure, both their lives and their production. Again, I state: If the society you live in does not have a majority that shares and defends a belief in your rights, you cannot successfully exercise those rights. As it pertains to Rand's "right to your own life," Heinlein wrote, "You cannot enslave a free man. The most you can do is kill him." Or, as the recent protest placard from Lebanon quoted Braveheart: "They can take our lives... but they can never take our Freedom."

But the "live free or die" option wasn't chosen very often, it appears, Spartacus notwithstanding. The majority of those societies were far too willing to accommodate.

When Thomas Jefferson wrote the Declaration of Independence, he stated:

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. --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, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

He and the other Founders may have held those "truths to be self-evident," but for centuries if not millenia before they were neither self-evident nor true. In fact, even today those "self-evident" rights are not acknowledged in much if not most of the world. As Rand stated,

The concept of individual rights is so new in human history that most men have not grasped it fully to this day.

Dr. Cline wrote:

Whether someone can or does violate a right of yours (or mine) says nothing about the content of the right itself. It is a mistake (leading to your straying near the idea that whatever "government" does is OK - as long as it has the force to back it up) to consider the question of what is a right to be a question of what is rather than what should be. Rights are not at all like physical laws; they are answers to questions of morality, which science (the realm of physical laws) has never been able to answer. The fact that many people considered (or still consider) rape, murder, and slavery to be morally acceptable is irrelevant to the correct answers to questions of morality. Many people have incorrect beliefs regarding morality (or even regarding physical laws for theat matter), and moral questions are notoriously tricky to answer. (This is quite probably the reason some philosophers decide to eventually go with the gibberish about rights and morality being meaningless, only a result of an act of will, or a "social construct" - out of laziness.)

I'm not a big fan of moral relativism, but I have studied history and I think this is the point at which Dr. Cline and I part philosophical company. I've quoted from Heinlein's Starship Troopers lecture on "History and Moral Philosophy" on a number of occasions - Dr. Cline objects, in fact, to my selection from that book because:

The government presented therein is a fine example of a fascist/communist nanny-state, and its subjects/slaves are clearly worshippers of Nietzche's "New Idol" - the state.

Yet I think he suffers from what Heinlein's "Col. Dubois" points to as the flaw in our own society:

"Young lady, the tragic wrongness of what those well-meaning people did, contrasted with what they thought they were doing, goes very deep. They had no scientific theory of morals. They did have a theory of morals and they tried to live by it (I should not have sneered at their motives), but their theory was wrong -- half of it fuzzy-headed wishful thinking, half of it rationalized charlatanry. The more earnest they were, the farther it led them astray. You see, they assumed that Man had a moral instinct."

"Sir? I thought -- But he does! I have."

"No, my dear, you have a cultivated conscience, a most carefully trained one. Man has no moral instinct. He is not born with moral sense. You were not born with it, I was not -- and a puppy has none. We acquire moral sense, when we do, through training, experience, and hard sweat of the mind. These unfortunate juvenile criminals were born with none, even as you and I, and they had no chance to acquire any; their experiences did not permit it. What is 'moral sense'? It is an elaboration of the instinct to survive. The instinct to survive is human nature itself, and every aspect of our personalities derives from it. Anything that conflicts with the survival instinct acts sooner or later to eliminate the individual and thereby fails to show up in future generations. This truth is mathematically demonstrable, everywhere verifiable; it is the single eternal imperative controlling everything we do.

"But the instinct to survive," he had gone on, "can be cultivated into motivations more subtle and much more complex than the blind, brute urge of the individual to stay alive. Young lady, what you miscalled your 'moral instinct' was the instilling in you by your elders of the truth that survival can have stronger imperatives than that of your own personal survival. Survival of your family, for example. Of your children, when you have them. Of your nation, if you struggle that high up the scale. And so on up. A scientifically verifiable theory of morals must be rooted in the individual's instinct to survive -- and nowhere else! -- and must correctly describe the hierarchy of survival, note the motivations at each level, and resolve all conflicts.

I think Dr. Cline believes that man has an innate moral instinct.

The whole purpose of morals is to ensure survival, and whatever works to ensure survival is, for that society, "moral." If the practice of slavery increases the chances for survival, then the society will practice slavery, and its members will stare at you as if you had three heads if you try to convince them that what they are doing is morally wrong. If the practice of slavery will result in the enslaving society being attacked and destroyed by the ones it enslaves, then slavery will be abandoned as not worth the effort or (if realized too late) it will fall because its morality failed. But when slavery becomes a survival-neutral activity, inertia will carry it long past the point at which it should be abandoned - because man has no moral sense. (Bear in mind that slavery was a common human condition until - as Sarah of Carnaby Fudge has repeatedly pointed out - Protestant Christians took up its abolition as a moral cause. It is still practiced in some places today.)

From a pragmatic point of view, if it works, it's good. If it doesn't work, it's bad. Nothing else matters. An "incorrect belief regarding morality" means one that is detrimental to the survival of the individual and the society, nothing more. An example: the Indian practice of sati. In the Indian culture the widow of a man was expected to commit suicide by self-immolation either on her husband's funeral pyre or separately, in a demonstration of her loyalty and devotion to her husband. In that culture, the wife's existance was pretty much defined through her husband, and when he died she became a burden on her society. For apparently pragmatic reasons she was expected to kill herself, and for religious reasons in this specific, agonizing way. There is some evidence that not all incidents of sati were voluntary. This practice dates back to probably the 1500's, but it was prohibited by the British in 1829.

Is it wrong for a woman to do that? Is it wrong for a society to expect it of her? The (probably apocryphal) story of its ending was one of conflict between two moralities - the Indian, and the British. The Brits declared that sati was no longer to be practiced, and the Indians protested that it was their honored and religious tradition. The Brits responded that it was their honored and religious tradition to hang people who burned women to death, so the next funeral pyre would be accompanied by a gallows, and if sati occurred, a lot of hangings would as well.

The practice of sati declined dramatically, but it still occurs occasionally - once at least as recently as 1987. There's that moral inertia thing, illustrated. Another example? Muslim "honor killings" of women - another whole post (if not more) in itself.

My point is that Dr. Cline essentially argues that there are certain specific "true" real rights that are universal for all people at all times and places. He lists murder, rape, and slavery as examples of things that are universally immoral and violative of rights. He states:

All rights are simply universal conditions "which tyrants cannot take away nor patriots restore." Even your Webster's definitions make this clear:

1: qualities (as adherence to duty or obedience to lawful authority) that together constitute the ideal of moral propriety or merit moral approval

2: something to which one has a just claim: as a: the power or privilege to which one is justly entitled b: the interest that one has in a piece of property - often used in plural (mineral rights)

3: something that one may properly claim as due

The words "moral," "just," and "properly" are the key here. The claim doesn't cease to be "moral," "just," or "proper" simply because it is violated. The beliefs of the evil and the wrong do not make a thing right.

Telling a murderer that he is violating your rights won't stop him from doing it, and if he kills you is he not "taking away your right to life"? The question I have is: the claim to whom? Who do we go to with our claims to our proper rights? It isn't God, obviously, because if so, He hasn't made His annoyance felt at any of the more egregious mass violations of individual rights, not to mention the plebeian everyday ones. To the populace of the society that has perpetrated the violation of rights? Fat lot of good that will do, as historically they've been complicit in the violation.

"All rights are simply universal conditions 'which tyrants cannot take away nor patriots restore'?" I don't think that's true, and I think human history illuminates that point with a million-candlepower floodlight. But as we've progressed through time, changes in technology and the advantages these changes have given us have allowed us the freedom to think and to develop that newest of concepts: The Individual Right. And technology has given us, as I detailed in Those Without Swords Can Still Die Upon Them, the individual ability to defend those individual rights against infringement by others.

Dale Franks in his QandO Blog post Natural Rights? said:

If rights are natural, then why do they not arise spontaneously? Indeed, for rights to even exist for any appreciable amount of time, they have to be reinforced with a massive hedge of social, legal, and political buttresses. We employ thousands of individuals as police, lawyers, judges, and politicians. That seems to be a pretty complex life support system for something that's natural.

There are, of course, societies that exist without this life-support system. Somalia, for example, is a country in which everything it is possible for people to accomplish with guns has been accomplished. The only "rights" that exist there are those that the inhabitants can defend by force. So, why, after government collapsed in Somalia and the country devolved into anarchy, didn't the recognition of "rights" spontaneously arise?

--

Let's say you and I lived in a state of nature. What stops me from killing you? You have no recourse to the protection of the law. No community of fellow citizens who are pledged to protect you. There's just you and me in the forest, and I don't want you there. Where are your rights now? What protection do they afford you?

What you have is the ability to defend yourself. If you're lucky, the fear of your ability to protect yourself might deter me. It might not. But the only thing that keeps me from killing you and taking your possessions is your ability to defend yourself. Your "right" to live is irrelevant. The only "rights" you have in nature are those you can secure for yourself by force. Your "rights" certainly won't prevent me from bashing you over the head with a rock.

That "(t)he beliefs of the evil and the wrong do not make a thing right" may be true, does not stop the tyrant from acting. The only thing that can protect you is if a majority of the populace agrees on what are or are not "rights" - in this case, the right to live - and the willingness of that majority to act to defend those rights. If both of us agree that killing the other is wrong, we've just formed a society in which the majority (all both of us) holds a common belief system. If not, one of us is likely to die - and there can be no "proper claim" filed in protest of that fact. Further, any protestation of the "wrongness" of the act is meaningless.

So, in answer to the question, "Is it wrong for a thug to do whatever he (or she) wants to me or anyone else if he (or again, she) can back their actions up with force?" I must reply that the answer is dependent on whether this action occurs within a society that deems such actions to be wrong. If so, yes. If not, the answer is not "no," the question is moot. The answer to the question "Are (or were) the governments of communist China, North Korea, Soviet Russia, or Nazi Germany wrong in controlling all aspects of their subjects lives?" is much easier. Those actions all took place long after the concept of individual rights was firmly established in our society. Yes. They are all wrong. But that fact didn't stop those governments. The rights of those individuals were all violated by their own governments through the actions of individuals in those societies, and the majority of those societies did not act to stop those violations - so what good were their rights? If they believed in their individual rights, yet did not defend their individual rights, how is this pragmatically different from their not having those rights?

In answer to the question "Was (or is, as the case may be) slavery (or murder, or the forcible confiscation of an individuals property by a government) wrong?" - again, it is wrong by our standards of enlightenment - but that alone does not prevent the actions from occurring.

This, then, brings us to the question of the rightness of any particular right. As I quote Rand above, the only fundamental right is a man's right to his own life. All others are its consequences or corollaries. Chris Byrne of AnarchAngel divides rights into inherent and constructed. Inherent rights, he says,

are those rights we posess by virtue of being sentient beings; constructed rights, are all other things, taken as rights, which are not inherent rights. They are rights by law, but not by nature

For example, inherent rights would include, among others:

• The right to not be attacked or killed out of hand by your fellow man.
• The right to own and hold property
• The right to defend ones life and ones property against others.
• The right to determine the course of ones life through free choice
• The right to be judged fairly by ones actions (that one's a bit fuzzy)
• The right to think those thoughts that you wish to think
• The right to speak those words that you wish to speak; presuming they are not, in effect, actions infringing the rights of others.
  

Inherent rights cannot be taken, or limited; but by force, or willing consent.

Constructed rights would include the right to privacy, the right to vote, the right to marry (civily), and others.

Not a bad list, as every one of those "inherent rights" can be seen as a corollary to "a man's right to his own life."

Professor Randy Barnett devotes a chapter of his book Restoring the Lost Constitution to "Natural Rights as Liberty Rights." In it, he discusses the difficulty of identifying all the Rights of Man, beginning the chapter with the words of James Irdell from the North Carolina ratifying convention, July 29, 1788:

[I]t would not only be useless, but dangerous, to enumerate a number of rights which are not intended to be given up; because it would be implying, in the strongest manner, that every right not included in the exception might be impaired by the government without usurpation; and it would be impossible to enumerate every one. Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.

Barnett argues that the reason no complete list of the "rights of the people" was included in the Constitution is precisely the reason given by Irdell: such a list would be impossible to construct. First off, you could never get any group of people to agree to them all, and second, the list would be endless, trailing off into absurdity. But the point I was making in What is a "Right?" was this:

This nation was founded on the belief in a certain set of rights.

Those rights are based on the foundation of certain individual liberties heretofore unpracticed by any other society.

That foundation (for want of a better source) is Rand's single fundamental right, come to by the power of REASON.

These rights were codified into the founding legal document of our nation.

The preservation of these rights requires active participation in their defense by the majority of the populace - else, rightly or wrongly, they will cease to be protected and will vanish as if they had never been.

The day after I put up that first post, I found a quotation by Antonin Scalia that pretty much said it all in a paragraph:

To some degree, a constitutional guarantee is like a commercial loan, you can only get it if, at the time, you don't really need it. The most important, enduring, and stable portions of the Constitution represent such a deep social consensus that one suspects if they were entirely eliminated, very little would change. And the converse is also true. A guarantee may appear in the words of the Constitution, but when the society ceases to possess an abiding belief in it, it has no living effect. Consider the fate of the principle expressed in the Tenth Amendment that the federal government is a government of limited powers. I do not suggest that constitutionalization has no effect in helping the society to preserve allegiance to its fundamental principles. That is the whole purpose of a constitution. But the allegiance comes first and the preservation afterwards.

I came to be an activist because I recognized that fact, just from looking at how the Right to Arms has been steadily chipped away. This has happened because much of the society has lost its "abiding belief in it." It is hardly the only right so affected, enumerated or not. I've had this conversation before, as detailed in the post Engage, or Disengage? I'm at somewhat of a loss over what to do about it, other than to try my damnedest to educate people so that they see it, too, before things get too far out of hand. I call that "trying to teach the horse to sing."

My objection to the position that Dr. Cline takes is that it encourages members of the society to disconnect. If you believe, as Dr. Cline believes, that "All rights are simply universal conditions 'which tyrants cannot take away nor patriots restore'" then why would it be necessary to defend them? But I think that sooner or later you will discover that the result of such a belief is finding a tyrant violating your rights is pragmatically no different from not having them at all.

UPDATE, 3/21: Solarvoid posts on the topic from the "sunny rose colored Jesus glasses" perspective. (His words!) Good piece.