Contracts and Absolutes

A couple of days ago, fellow gun- and rights-blogger Publicola posted The Minority Retort, a long-delayed piece on the topic of the Rights of Man. Pertinent excerpt:

In most things Kevin & I are in agreement. However there are a few differences.
I refer you to the following posts:

What is a "Right"?
It's Not All Faith
Rights, Revisited
History and Moral Philosophy

In these you'll find the main difference between Kevin & myself: He's a Contractualist whereas I'm an Absolutist. I think we both agree as to some of the problems society currently faces about Rights: namely that we are pretty damn apethetic in general about the most important ones.

Where we differ is in the origin of those Rights.

Publicola goes on to make his argument:

A Contractualist believes that Rights are strictly a construct of the social contract. In other words Rights are dependent on society agreeing that they are in fact Rights.

An Absolutist believes that Rights are inherent & exist independently of the social contract. Rights are an inherent thing not given to men by men, but bestowed upon us by Nature or Nature's God (depending upon your belief system).

Please, read the whole post if you haven't already.

Let me see if I can illustrate where I see logical flaws in Publicola's arguments.

I'll accept - to a point - Publicola's definition of me as a "Contractualist." I have, however, made the point that I do believe in at least one right that exists outside the social contract. In my six-part exchange with Dr. Danny Cline on this very same topic, I said this:

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.)

I went on to argue that this right, the right to one's own life, is understood only if there is sufficient freedom both of time and thought to allow reflection on the topic. It's "self-evident" only if you have the time and the freedom to consider the question.

For millennia, that was not the case. People lived ferally at the whim of nature, then in strict hierarchies and at the whim of their social superiors. The fruit of their production was not theirs. It belonged to clan and tribe and then king. Their lives were not their own.

Publicola argues that history does not negate the fact that the right existed even when it was unrecognized. I argue that, if a thing isn't recognized, isn't praticed, isn't defended, it is for all intents and purposes non-existant. Publicola argues that rights are inherent and independent from society, but then states:

If a stone falls out of the sky & kills you that's just part of the game. It sucks, & in a bad way but those are the breaks. The rock was not acting with malice when it landed on you. It was behaving as rocks behave in gravity.

If a person walks up to you & for no justifiable reason drops a rock on you & kills you, then we have action with intent. We also have a good use of why Rights were communicated.

People. Be it a person acting singly or a group acting as a government, people are the reason it was necessary to define & articulate & communicate what exactly a “Right” is. They are, in essence, boundaries to prevent action from or by other people that would halt or slow you down in seeking or trying to achieve something that is necessary & proper for you to do.

Rights, according to Merriam Webster, and agreed to by Publicola are:

something to which one has a just claim: as a: the power or privilege to which one is justly entitled b (1) : the interest that one has in a piece of property -- often used in plural (2) plural : the property interest possessed under law or custom and agreement in an intangible thing especially of a literary and artistic nature; something that one may properly claim as due

I've used that argument myself. But note the one commonality. Rights are, by Publicola's definition and mine only claimable against other people - that is, your society. You cannot claim the ocean violated your right to life if you drown in it because of an accident. Your family can, however, file claim in court if someone else was responsible for your being in the ocean in deadly peril.

That is, if you live in a society that recognizes your right to life.

If you don't, then you're SOL. Your "just claim" would just fall flat.

I quoted MaxedOutMama yesterday:

Liberty is an inherently offensive lifestyle. Living in a free society guarantees that each one of us will see our most cherished principles and beliefs questioned and in some cases mocked. That psychic discomfort is the price we pay for basic civic peace. It's worth it.

It's a pragmatic principle. Defend everyone else's rights, because if you don't there is no one to defend yours.

Rights exist when people are willing to defend them. Otherwise, they're just some damned fool's crackpot ideas.

I've discussed this before, too. I believe in "a man's right to his own life," and that "all other rights are its consequences or corollaries." However, "all other rights" gets damned fuzzy damned fast. Certain Founders - among whom included James Madison, the author of the Bill of Rights - believed that enumerating some of the fundamental rights in the Constitution would lead to the denegration of other, equally important rights. I quoted James Irdell from the North Carolina ratifying convention:

[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.

(From Professor Randy Barnett's Restoring the Lost Constitution.) Irdell argues that the rights of humanity are, essentially, innumerable. Every single human being out there can come up with a "right" that they firmly believe in. Madison even tried to forstall this danger by writing the Ninth Amendment:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

But the Ninth Amendment has become a meaningless inkblot, according to Robert Bork.

So who decides?

The society you live in, by general agreement.

That's what defines a society.

And what defines the success of a society is whether the rights, privileges, and responsibilities they agree to result in the survival of that society.

I think you can see that the current French belief in the right to, as Nina Burleigh described it, "cheap medicine, generous welfare, (a) short workweek and plentiful child care" just isn't going to pay off for them in the long run. Nor is England's belief in the right to universal health care.

A society is defined by the rights, privileges, and responsibilities agreed to by the politically active majority (which may, in fact, be a tiny minority of the overall population.) When that politically active majority changes, so does the society. We no longer practice slavery. We no longer practice codified, legally sanctioned discrimination against blacks. A very vocal minority is currently attempting to change our society and manipulate what the current majority sees as our rights. Things change.

But the Absolutists say "NO!" They believe there are absolute, positive, unquestionable, fundamental, ultimate rights.

I know only one. An individual's right to his own life. There are consequences and corollaries of that one right, but people will disagree on what those are, and some will even disagree with that one. Religious fundamentalists may argue, for example, that an individual's life belongs to his diety. I believe that's the position the Jihadists take. Their lives are not their own.

And this is why societies clash - fundamentally incompatible belief systems. A disagreement on what are and what aren't rights. From David Hackett Fisher's Albion's Seed:

We Americans are a bundle of paradoxes. We are mixed in our origins, and yet we are one people. Nearly all of us support our Republican system, but we argue passionately (sometimes violently) among ourselves about its meaning. Most of us subscribe to what Gunnar Myrdal called the American Creed, but that idea is a paradox in political theory. As Myrdal observed in 1942, America is "conservative in fundamental principles . . . but the principles conserved are liberal, and some, indeed, are radical."

We live in an open society which is organized on the principle of voluntary action, but the determinants of that system are exceptionally constraining. Our society is dynamic, changing profoundly in every period of American history; but it is also remarkably stable.

I think we're witnessing a destabilization of our dynamic society. Of societies all over the world, in fact. What the Absolutists here proclaim to be Absolute Rights are, in fact, pretty radical compared to what history has shown us, and this is illustrated by MaxedOutMama's quote:

Liberty is an inherently offensive lifestyle. Living in a free society guarantees that each one of us will see our most cherished principles and beliefs questioned and in some cases mocked.

What other society has ever been founded on a principle that embraces the radical idea that cherished principles and beliefs should be subject to question and even mockery? Yet the right of freedom of speech is one of those absolutes, is it not?

And if not, why not?