In the past, I've argued against the concept of "rights" as basis for reasoning about policy.
I'm about to do a 180° on this. I think I've finally understood what rights are.
The currently popular idea is that rights are automatically attached to every human. The UN Universal Declaration of Human Rights is, I suppose, the most relevant statement of this idea, though the US Declaration of Independence makes the same fundamental claim.
The obvious - and fatal - problem with this theory is that it is useless. What does it mean to say that somebody has the right to life, if they have a terminal disease? What does it mean to say someone has a right to protection against unemployment (article 23) if nobody can afford to employ him?
One can attempt to avoid this problem by restricting rights to "Negative rights". On this system, one cannot have, as a right, anything that requires another person to actively provide anything; one can only have the right not to be prevented from some given course of action. This is less obviously silly, but not, I think, really different. Two people cannot usefully have the right to eat the same apple.
It can go as far as defining rights simply as restrictions on government, but that is not useful, for what is government but a bunch of men with guns? Restricting the government does no good if some other bunch of thugs commit the same crimes.
So much for inherent rights. There is another view, which is that rights are not inherent, but are given by government. There is no problem with rights which are awarded by government, it is just one way of expressing the government's law. On the other hand, since the essence of government is that the strong enslave the weak, there is no particular significance to the laws insofar as they restrict government, they are just the way a government chooses to behave until it chooses differently.
Rejecting both inherent and government-awarded rights as useful concepts, then, I have rejected rights. I now see that there is a third category of rights, which is a useful basis for thinking about law and about government.
Rights are neither inherent, nor given. Rights are taken.
The early arguments based on rights appealed neither to God nor to charter as the basis of the rights. If anything, they appealed to tradition. How does tradition justify their claims, if it only pushes into the past whatever is supposed to be the origin of the rights. The answer is that the argument is saying, that for some long period of time, when the alleged rights have been infringed, the people have acted to regain them. A right is not something you are born with, or something you are given. It is something you are prepared to fight for. More pertinently, it is something a group of people are prepared to fight for. If you establish a track record of consistently fighting for some right, then the most absolute of governments will nonetheless find it advisable to make a point of respecting it.
I worked this out once before, in the case of the right to freedom of religion, but I saw that at the time as a special case, whereas I now claim that is an instance of the general principle of what rights are.
Labels: crime and freedom, philosophy