I have rights. You have rights. She has rights. He has rights. They have rights. We all have rights! Hooray for rights.
So we have the right to live, to be free, to be treated equally, and to say and do whatever we want so long as it doesn’t infringe on the rights of others. Awesome. What a wonderful, modern world we live in where we’ve come to realize our inalienable human rights.
But if these rights are so fundamental to our being, where do they come from, anyways? So much about ethics today, especially in law and politics, concerns whether or not certain actions infringe upon human rights. It would probably be wise to be sure that these rights stand on solid ground.
So let’s consider a few sources of our beloved rights:
Natural justice, or natural law, is the idea that there exists a fundamental idea of justice — one that is somehow either a property of humanity, of life, or of the universe or cosmos in general. Right is right. Wrong is wrong. They’re something real, beyond what any law says at any particular point in time. They’re obvious to us, and laws that oppose them are foolish, wrong and unjust.
The religious version of the natural justice idea is that rights are granted to us by the divine. Right is right and wrong is wrong, because God/the gods/the spirits will(s) it to be so. In some religions, not all rights are universal: some religions prescribe different rights to men than to women, to people of higher or lower social status, or to people of certain lineage.
But the idea is generally the same: some acts are just or unjust because there is some absolute morality driving our ideas of justice. United States law is one prime example of natural justice as the “official” source of human rights, as demonstrated by the U.S. Declaration of Independence:
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.
The bolding is mine, to highlight the obvious.
The Social Contract
If you’re not inclined to believe that there exists some fundamental justice in the world, which may be the rational conclusion if you are an atheist, or perhaps an agnostic, then we need a source of rights that doesn’t depend upon some universal moral constant. If justice exists, it must be a human creation. But how did we create justice, and if so, how can it prescribe fundamental, universal rights?
Social Contract theory is important to ethics, but also to political philosophy. The idea for both is the same: human beings once existed in what the philosopher Thomas Hobbes called the “state of nature”. In his magnum opus, The Leviathan, he describes humanity in a state of constant war with itself, where men lead “brutish and short” lives. In the state of nature, morality does not exist.
The Social Contract is the man-made solution to this dilemma. We create societies, in which we agree to follow a set of rules because it’s the smart thing to do for our own survival and well-being. We agree to give some authority to our governments, because someone must maintain the peace. If we agree to this contract, we leave the state of nature and enter into the realm of law, where a sense of justice now rules us. The agreement need not be explicit — we obviously haven’t all signed a contract. But the fact that we live in countries with certain notions of rights, participate in those societies and, at least generally, abide by those laws, we are part of the social contract.
However, if one decides to reject the contract, that person exists in the state of nature. If someone is in the state of nature, we can choose to punish them in any way we please. They have no rights, because they rejected the source of rights, and nothing we do to them can be deemed just or unjust — moral or immoral.
Utilitarianism, as a moral theory, is a little different. In general, utilitarianism holds that what is just is what produces the maximum amount of happiness for the largest number of people, and the least amount of misery. Utilitarianism is all about the math — whatever produces the most positive effect and/or the least negative effect is the correct, or just, course of action.
What does that mean for rights? Not much. In a purely utilitarian view of morality, the rights of the individual are of little consequence to the more important needs. It sounds pretty Vulcan: “the needs of the many outweigh the needs of the few”. (That’s right, a Star Trek reference.)
But we quickly find scenarios in which Utilitarianism produces “just” actions that seem wrong to most people. For example, let’s consider Jimmy Winters. Jimmy Winters is an investor, and a banker. Jimmy Winters loans people money when they need it most, and charges huge amounts of interest. Jimmy Winters helps people buy houses they can’t afford, and then sells their mortgages for a profit. Jimmy Winters is the reason the housing market fell apart in 2008. Jimmy Winters then took money from the government, and paid himself a nice bonus with it. Jimmy Winters sleeps on top of a pile of money with three different women he’s paid to sleep with him every night. Jimmy Winters has never given a dime to charity. Jimmy Winters is worth $50 million that the government knows about, and at least $30 million more in offshore holdings. Jimmy Winters is a douchebag.
You could feed a lot of people with that money. You could build hospitals and save many lives with that money. You could do great things with that money. So if what’s right is the thing that has the greatest positive effect for the most people, the just and correct thing to do is to kill Jimmy Winters, steal his money, and do good things with it.
It’s Robin Hood on crack, and as much as we may think that Jimmy Winters deserves such a fate, and nobody would miss him, most people feel that it’s still wrong to kill someone for their stuff.
(Jimmy Winters is a fictional guy, by the way. I just made that up. If there’s some Jimmy Winters out there reading this, I’m sorry. You’re probably not a douchebag.)
In the case of utilitarianism, rights appear as a “fix” to this kind of problem. We have the sense that this is wrong because it infringes upon a right to life — there are certain rights that are paramount, that have a value so high that the situation must be incredibly dire for them to be outweighed by anyone else’s needs or wants. The right to life is such a right.
So, uh, where do they come from?
We’ve looked at three possible sources of rights: natural justice, the social contract, and a fix for utilitarianism. As with any important question in philosophy, none of the answers are perfect.
In the case of natural justice, we’re relying on some idea of universal morality which is essentially unverifiable. We’re never going to agree on the source: good luck getting religious groups to agree on anything, and if you’re not considering a divine source, it’s hard to pin natural justice on any real source.
In the case of social contract theory, we may be closer to something that makes sense, but it doesn’t cover everything. What about children who aren’t able to make the decision to join the social contract on any level, conscious or unconscious? What about those with mental disabilities, especially if they have no close relatives who can make the agreement on their behalf? We seem to want to grant them rights, even if they don’t have the ability to truly participate in the moral community. And what about future, nonexistent people? Surely they have no rights by this theory — but then why are we so concerned about ruining their lives with global warming? Why do we feel a moral duty to future generations?
And for utilitarianism, as I mentioned, rights only appear as a fix to a moral theory that gives us so much moral ambiguity that we must assign rights before we slip into a world of vigilante justice.
The alternative to all of these is that rights don’t exist until they are assigned directly by law. So, in the U.S., the right to bear arms is a constitutional right because it is a constitutional right. It exists because it is written into the laws of that country. In Canada, that right does not exist, and there’s no truth to the ideas that it “should exist” or “should not exist”. It simply does not, because justice is law. That’s a great idea in countries that have laws which are, for the most part, compatible with our values. But there’s a huge flaw there: how confident are you that lawmakers are and always will be just?
Yeah, me either.
So much for solid ground. Many of these ideas come close to our common understanding of rights, but most people don’t agree whole-heartedly with any one, and if they do, they don’t agree with everyone else.
But despite all of these inconsistencies, we tend to believe that we have rights. We believe our rights exist because we feel they ought to. We believe in a right to live, a right to believe and say what we choose, a right to be somewhat secure and free, and perhaps most generally, a right not to be subjected to suffering by others.
That last one — the right not to suffer, or be forced into suffering — is something I’m going to come back to very soon. I have more to say about rights in a future post. We’re just glazing over the basics here, of course.
In the meantime, what do you think about rights? Are our rights as fundamental as we tend to believe they are? And if so, do any of these theories adequately describe why? Have I missed something important?