What's Wrong about Rights
This is a long post, sorry.
I think the concept of rights (whether natural or otherwise) as we currently understand it is a relatively new development in ethics, political philosophy, and in the law.
We don't see it much (or at least I don't) in ancient times in the West. Roman law is vast, but beyond the view that certain people are due or not due certain things by virtue of their status--e.g. a Roman citizen being due an appeal to the emperor--individual rights don't factor large from the Twelve Tablets to Justinian's Codex.
The idea of Natural Law certainly appears in Roman jurisprudence and may be said to be a factor, even a very important factor, in ancient philosophy, but particularly in Stoicism, which it may be said reached a particularly high level of influence in the Roman Empire and late Republic (see Cicero). But if Natural Law engendered the belief that we are endowed by Nature or Nature's God with certain inalienable rights, in my opinion this occurred long after Natural Law had been conceived.
Cicero claimed he wasn't a Stoic, but he studied Stoicism and borrowed from it the belief that we should live "according to nature" which meant according to reason. Regarding Natural and Human Law, Cicero wrote: "Law is the highest reason, implanted in Nature, which commands what ought to be done and forbids the opposite. This reason, when firmly fixed and fully developed in the human mind, is Law. And so they believe that Law is intelligence, whose natural function it is to command right conduct and forbid wrongdoing. They think that this quality has derived its name in Greek from the idea of granting to every man his own and in our language I believe it has been named from the idea of choosing. For as they have attributed the idea of fairness to the word law, so we have given it that of selection, though both ideas properly belong to Law. Now if this is correct, as I think it to be in general, then the origin of Justice is to be found in Law; for Law is a natural force; it is the mind and reason of the intelligent man, the standard by which Justice and Injustice are measured." (from De Legibus). (Emphasis added).
What is notable here, for me, is the absence of any reference to rights. What is just isn't determined by reference to the rights of each individual. The focus is on conduct; what conduct is right, and what is wrong, not on entitlement. Proper conduct is determined by adherence to intelligence informed by nature. It's a matter of choice and selection of what's proper, of judgment.
Nature, then, provides us with rules which should govern our conduct in life. I don't see this as equivalent to the belief that each person has certain rights, God-given or otherwise. Natural Law in this view isn't premised on our entitlement or right to anything. It doesn't prohibit certain conduct because it impairs an entitlement or right. It directs that we act in a particular manner.
We say we have a "right" to something when we believe that we are or should be free to do something or possess something. We have a claim to it; we are entitled to it, to the exclusion of anyone else. This is foreign to the idea of Natural Law as accepted in Stoicism and Cicero, and I think in Roman jurisprudence generally. For example, Stoicism teaches us that things beyond our control are indifferent. It urges us not to disturb ourselves with them, not to seek or desire them. What else is the claim to have a right to property but a claim that one is entitled to something beyond our control? It would be bizarre for a Stoic sage to maintain that he is entitled to anything, even to his own life. So, there is to them no right to life. Nature/God will determine when we die and how; we should be prepared to die, but our death is one of the things beyond our control Similarly, a Stoic has no conception of a right to be free; one can be free even if in prison, as one maintains sovereignty over that which is truly in one's control.
For my part, I believe the only rights we have are those recognized by the law, that is to say, legal rights. Certainly those are the only rights which are enforceable. Legal rights, though sometimes conceived of as possessory, in fact result from restrictions imposed particularly on governmental power. We have no right of free speech, for example, in the law. We have the First Amendment, though, which prohibits the government from restricting free speech. Legal rights therefore often exist purely because the law prohibits certain conduct by others. I can speak freely in the sense that the government is unable to prevent me from doing so.
When we speak of rights outside the law, whether we call them natural rights, inherent rights, god-given rights, we purport to refer to what has application only if protected by the law. We treat them as if they are legal rights, though they are not. We claim to be entitled to certain things or entitled to do certain things by virtue of non-legal rights.
It seems to me that when we employ the concept of rights in ethics, we take an idea which has a beneficial function in the law and employ it where it has no function at all or a negative function. Rights are something we have or claim. Our interest in them is selfish. We don't see rights as creating duties to others. If we have the right to do and think what we wish, even if that right is qualified so that our right to act and think may not be used to harm others, we may do as we please even if we are cruel, envious, uncharitable, craven, contemptible, gluttonous, miserly. We may be utterly unworthy, and are not only free to be so but have every right to be so.
In other words, we have the right to be wrong, bad, immoral as long as we don't infringe directly on the rights of others. This is an ethics which sanctions, if it doesn't actually encourage, the disregard of the suffering of others.
I think the concept of rights (whether natural or otherwise) as we currently understand it is a relatively new development in ethics, political philosophy, and in the law.
We don't see it much (or at least I don't) in ancient times in the West. Roman law is vast, but beyond the view that certain people are due or not due certain things by virtue of their status--e.g. a Roman citizen being due an appeal to the emperor--individual rights don't factor large from the Twelve Tablets to Justinian's Codex.
The idea of Natural Law certainly appears in Roman jurisprudence and may be said to be a factor, even a very important factor, in ancient philosophy, but particularly in Stoicism, which it may be said reached a particularly high level of influence in the Roman Empire and late Republic (see Cicero). But if Natural Law engendered the belief that we are endowed by Nature or Nature's God with certain inalienable rights, in my opinion this occurred long after Natural Law had been conceived.
Cicero claimed he wasn't a Stoic, but he studied Stoicism and borrowed from it the belief that we should live "according to nature" which meant according to reason. Regarding Natural and Human Law, Cicero wrote: "Law is the highest reason, implanted in Nature, which commands what ought to be done and forbids the opposite. This reason, when firmly fixed and fully developed in the human mind, is Law. And so they believe that Law is intelligence, whose natural function it is to command right conduct and forbid wrongdoing. They think that this quality has derived its name in Greek from the idea of granting to every man his own and in our language I believe it has been named from the idea of choosing. For as they have attributed the idea of fairness to the word law, so we have given it that of selection, though both ideas properly belong to Law. Now if this is correct, as I think it to be in general, then the origin of Justice is to be found in Law; for Law is a natural force; it is the mind and reason of the intelligent man, the standard by which Justice and Injustice are measured." (from De Legibus). (Emphasis added).
What is notable here, for me, is the absence of any reference to rights. What is just isn't determined by reference to the rights of each individual. The focus is on conduct; what conduct is right, and what is wrong, not on entitlement. Proper conduct is determined by adherence to intelligence informed by nature. It's a matter of choice and selection of what's proper, of judgment.
Nature, then, provides us with rules which should govern our conduct in life. I don't see this as equivalent to the belief that each person has certain rights, God-given or otherwise. Natural Law in this view isn't premised on our entitlement or right to anything. It doesn't prohibit certain conduct because it impairs an entitlement or right. It directs that we act in a particular manner.
We say we have a "right" to something when we believe that we are or should be free to do something or possess something. We have a claim to it; we are entitled to it, to the exclusion of anyone else. This is foreign to the idea of Natural Law as accepted in Stoicism and Cicero, and I think in Roman jurisprudence generally. For example, Stoicism teaches us that things beyond our control are indifferent. It urges us not to disturb ourselves with them, not to seek or desire them. What else is the claim to have a right to property but a claim that one is entitled to something beyond our control? It would be bizarre for a Stoic sage to maintain that he is entitled to anything, even to his own life. So, there is to them no right to life. Nature/God will determine when we die and how; we should be prepared to die, but our death is one of the things beyond our control Similarly, a Stoic has no conception of a right to be free; one can be free even if in prison, as one maintains sovereignty over that which is truly in one's control.
For my part, I believe the only rights we have are those recognized by the law, that is to say, legal rights. Certainly those are the only rights which are enforceable. Legal rights, though sometimes conceived of as possessory, in fact result from restrictions imposed particularly on governmental power. We have no right of free speech, for example, in the law. We have the First Amendment, though, which prohibits the government from restricting free speech. Legal rights therefore often exist purely because the law prohibits certain conduct by others. I can speak freely in the sense that the government is unable to prevent me from doing so.
When we speak of rights outside the law, whether we call them natural rights, inherent rights, god-given rights, we purport to refer to what has application only if protected by the law. We treat them as if they are legal rights, though they are not. We claim to be entitled to certain things or entitled to do certain things by virtue of non-legal rights.
It seems to me that when we employ the concept of rights in ethics, we take an idea which has a beneficial function in the law and employ it where it has no function at all or a negative function. Rights are something we have or claim. Our interest in them is selfish. We don't see rights as creating duties to others. If we have the right to do and think what we wish, even if that right is qualified so that our right to act and think may not be used to harm others, we may do as we please even if we are cruel, envious, uncharitable, craven, contemptible, gluttonous, miserly. We may be utterly unworthy, and are not only free to be so but have every right to be so.
In other words, we have the right to be wrong, bad, immoral as long as we don't infringe directly on the rights of others. This is an ethics which sanctions, if it doesn't actually encourage, the disregard of the suffering of others.
Comments (90)
Your civil rights limit the state's freedom against you and other ppls rights limit your freedom. Your rights limit my freedom. Property rights do not grant freedom - they limit it. Nomads did not need a right to stop anywhere. Maybe they need it nowadays as all land is claimed by national states.
There is a sense of "right" that just means "freedom". These are sometimes called "liberty rights". You have a liberty right whenever you're not prohibited (by law or morality, whichever system you're talking about) from doing something.
Then there's a sense of "right" that means what you say, a limit on others liberty rights, which places an obligation on them toward you. These are usually called "claim rights" to distinguish them. Property rights are claim rights.
Both of those are first-order rights, and there are second-order versions of each.
A second-order liberty right is a "power", which is basically the liberty to change others' first-order rights, to permit or prohibit things, to create or abolish obligations. These are the kinds of "rights" that states claim over their peoples.
A second-order claim right is an "immunity", which is a limitation on powers just like claims are limits on liberties. You have an immunity exactly when someone else doesn't have a power over you. Civil rights are generally immunities; everything in the US Bill Of Rights is an immunity, explicitly limiting the powers of congress (and later, via the Equal Protection Clause of the 14th amendment, state legislatures and all other lawmaking bodies as well).
Can you give some examples of the non-legal rights you are talking about?
Enjoy them....
.....
Any claimed right that isn't dependent on governing law, which would exist regardless of the law. For example, there are people who say "I have a right to say/think whatever I like." There is no law stating that a person may say or think whatever they like. There may be no law prohibiting them from doing so, of course.
The right to live. The right to the "pursuit of happiness." The right to work.
Veeerrrryyy unlikely in general...
Natural rights are in some sense suspended by legal rights.
I also like the question, "What's left of the right?"
1. The American right has been destroyed. What remains extant of its one time might?
2. If you consider a smooth transition of parliamentary sitting arrangement of elected representatives advocating from socialist (egalitarian) ideals to capitalistic (exploitive) ideals, then you can ask, is the person to his left still on the right?
3. A heavy weight boxing champion is about to retire, and has a match posted what people believe is too late in his career. "What's left of his right?" promoters ask, as if trying to guess or measure up the one-time strength of his world-famous right hook.
4. The English Lord discusses with his manager which manservant to let go to ease up his payroll. "Yeah, the one who keeps on saying "right on, Sire". Who is on his left?" "They are facing us, Sire, so to us the question becomes, who is on first." "erm, Simpkins, quite, quite."
Seriously speaking, rights given, as much as they selfishly serve the self, if they are given in equal measures to a group of people, then theoretically the rights do not amount to any selfish advantage. For instance, in America all adults have the right to vote. (I don't know if this is true, but let's assume it is for the sake of my example. For instance, I don't know if prison populations have this right.)
Does Paul have more advantage than Peter, in this instance? I don't think so. So rights distributed evenly to a population serve different purposes than to advantage only select members of it.
"You have the right to remain silent." This is another example of the rights of a population, the population of people under arrest. They all have the rights to this, there is no discrimination to losing the rights for any reason. It is a perpetual, non-evolving, free-of-charge rights of people who are being arrested.
So... while you are right that rights have a potential of serving selfish causes, if they are distributed equally, like I said, they don't provide any personal advantage within a population.
If - and maybe that's a big if - you view morality as social contractarian, then rights as you describe here could make sense in morality too.... i.e. as a society we all agree to refrain from certain harmful behaviors. So in a social contract sense, morality would be akin to prohibiting certain conduct by others, and yourself.
Quoting Ciceronianus the White
Not all behavior need be a matter of ethics it seems to me, or law for that matter. It's not because you are not ethically obliged to alleviate the suffering of others, that you can't choice to do so.
For law at least it makes sense, if only for practical reasons, not to legislate every little detail of how we should act.... even if you think behavior could be better in some ways. It seems to me that morality are also rules regulating behavior, and so they need some appropriate level of abstraction and generality, which makes it difficult to have them do to much... because the world is messy and changing.
Maybe the idea that morality is predominately about alleviating the suffering of others is a relatively new development in ethics? I'm not sure.
Edit: I'm not sure what my point exactly was... It wasn't very clear in any case.
Maybe it was this. Assuming not everything we do is and needs to be directed by ethics or morality, i.e. we just do stuff for whatever reason, love, friendship, greed, lust, ambition etc.. If you find yourself in this kind of world and want to better human behaviour, maybe it makes sense that ethics ends up being rules which restrict only certain types of harmfull behaviour.
Edit 2: And to answer more on topic, we get rights out of the social contract, which are the flip-side of the obligation we have from it.
Well, consider the "right to property." It can (and has been) been construed as prohibiting government from obtaining money from citizens to assist other citizens in various ways, e.g through providing health care.
Presumably, everyone has the "right to property." The problem is some people don't have any. The right is used in justification of an essentially selfish position, though it is a right to which supposedly all are entitled.
I'm sorry, but while all along this post you're right, you are not making an argument that has any effect on mine. Rights do not equate to actual states of being. And rights do not mean that you can only have that right if you have an object to apply it to. Case in point is your example: right to property, but what if you don't have any. Well, not having property does not negate the right to property at all. Once the non-possessor of property acquires property, he or she has a right to own it.
The rights to own property is also universal, despite its non-universal applicability. Quoting Ciceronianus the White
You said it. Everyone is EQUALLY equipped with the right to be selfish. EQUALLY. Whether you call it a right to own property or the right to be selfish, it is the same thing. No matter how you slice it, it is equally given to everyone -- the right to own, not the objects to own.
I think legal rights--rights dependent on law--are the only rights. So, I think the "right to property" exists only to the extent recognized by law. But, I'm not addressing whether or not rights exist independent of the law (i.e., that there are rights with which we're endowed by God or nature or whatever).
I think the belief that such rights exist has its basis in self-interest and, Ayn Rand and others notwithstanding, think that self-interest is not a virtue, and isn't a basis on which moral conduct should be determined or judged. The fact that all are entitled to such rights makes no difference as far as I'm concerned.
I feel like you're getting close to my criticism of rights, in general.
With your ending I suspect we're closer in mind than the language of rights would predict.
My feelings: We should be able to be craven, jealous, etc... because those are human emotions that need to be expressed and felt. Even acted upon.
But, to express my own sentiments, property rights are a bad place to express those sentiments.
I am not a stoic at all. I'm a bad epicurean. I just hope this is an invitation to talk about, as your title says, what is wrong about rights.
cuz I think rights are bullocks. lol. Just so you know where I come from.
As I think I said, though, I think rights which exist by virtue of law are real, and so are not necessarily bullocks.
My thought is that legal rights may serve a purpose by restricting the power of government and, sometimes, of others. But they, and the rights we're said to possess according to God or nature regardless of law, are available to be used--and are used all too often--to justify purely selfish concerns to the detriment of others. Personal morals are focused on what I am entitled to rather than how we should act towards one another or how to act virtuously. It's a very proprietary view of ethics.
Rights are better conceived of as in the nature of legal fictions.
Now, this I understand. This makes sense, and I fully agree with it.
I just wish to add that while you may be right in saying that greed is not a virtue, I wish to say that it is at times a valid survival tool, and an evolutionary advantage.
In a sense the concept of rights is about behavior. Your right to free and independent thought is my duty not to suppress or punish you for it. Your right to property is my duty not to plunder it, and so on. Every right afforded a man depends on a corresponding duty which the rest of us ought to, at least in theory, act out.
The discourse around rights serve well to define the reasonable limits of power, and I think the justifications for why we afford others these rights has been well reasoned and put to the grindstone of trial and error for hundreds if not thousands of years.
It's certainly true rights are codified and bestowed by legal systems. But each of us also have the power to afford another a right, simply by affirming it and acting out the corresponding duty. I think it's a damn shame we seek to relegate rights to the state, as if we haven't the power to afford other rights ourselves.
One of the difficulties I have with the concept of rights is that I think acceptance of them gives rise to an ethics in which good, or moral, conduct is defined as that conduct which doesn't interfere with them. Each person has the right to do certain things as long as they don't infringe on or violate the rights of others. Rights are deemed possessions we each have, to which we're entitled, and nobody may take or interfere with those possessions. As long as they don't their conduct isn't objectionable, and they're free to do whatever they like and refrain from doing whatever they don't want to do without censure.
Quoting wikipedia
" that Law is intelligence, whose natural function it is to command right conduct and forbid wrongdoing" is compatible with Confucius and oriental concepts of moral and laws of nature. Clearly we are not born knowing the laws and must learn them. That is learn to live in harmony with universal law and understanding, to violate universal law leads to trouble. That is not because a God or court of men will punish us, but it is a natural consequence of taking the wrong action. We are not entitled to violate the laws of nature, not even Trump. There is nothing we can do to change the consequences of our action. But we need be clear that we are not born knowing right from wrong and must make constant effort to learn and reason.
Back your argument, men's law and the authority of men can be wrong! Man's law is not the ultimate law. Universal law is above the law of man. Remember, we persecuted the Germans who were just following orders. A deeper understanding of such things is very important because it is what democracy is about.
Then you have divorced rights from duties.
And does this mean you are going to change your name?
What makes a right right and a wrong wrong?
Democracy is not blind obedience to law, but the constant search of right reason.
I'm not arguing against morality based on natural law. I'm questioning one based on claimed inherent rights. I think our concept of rights was unknown to ancient thinkers like Cicero and the Stoics and said as much in the OP. I remain a Ciceronian.
Holland, Tom. Dominion: The Making of the Western Mind . Little, Brown Book Group. Kindle Edition.
Interesting to see how the concept of 'right' was tied to the principle of Christian charity. I don't know much, or anything, about Roman law, but I daresay there was no equivalent conception in it.
Just to clarify, it does look like you are discussing universal rights of a sort. Rome had an idea of rights as it related to citizenship status. Someone with full citizenship had more rights than someone from the provinces. Full citizenship had greater rights of court, civic participation, etc. Universal rights are a relatively new thing, probably starting close to the Enlightenment. That is to say, the idea of a government existing to maintain rights rather than people existing to maintain government.
Rightfully so in my opinion. To me, refusing to interfere in such a manner is good conduct, and defending their rights even better. Censure and objection are not infringements on another’s right, however. An infringement would be some sort of unjust reprisal, like imprisonment.
It is difficult to defend the rights of those who engage in objectionable conduct. But with practice it can be done and those who do so are moral and decent.
You skipped my Greek example of our rights being well understood in ancient times. Perhaps not Rome, but surely by Greeks. Think back to that ancient civilization and many gods. Democracy is an imitation of the gods. Each one of us has the freedom of a god because there is no god over us rewarding and punishing us. Now we can not violate laws of nature, which even the gods must obey, but there is no authority higher than our own. There is no god or king over us, only logos.
The restrictions to what we do other than logos, is human customs. In Rome do as the Romans do. All social animals have social agreements, and getting along means falling in line with those agreements. But even before kings sisters buried there brothers. There is an authority higher then human authority and this is the source of our freedom.
If we are belligerent enough to go against all other human authority two things can happen. We will face rejection or we will convince others we are right. This seems to me crucial to our concept of freedom. In short, if you think you know "God's truth" and have the right to impose that on others, you are wrong!!!! You might win the war and destroy my people, but that still does not make you right. Only though reason and consensus can we determine what is right. The law above us is logos (reason), not human authority. Humans have social agreements and customs, but not the ultimate authority and our liberty depends on this understanding.
Animals are territorial and they have to fight to claim their territory and keep it. I would say this is in our nature. It is a survival need. But what gives us an unquestioned right to land and resources cut out of the mother? The God Abraham gave only a small part of the earth to Hebrews, but I don't think this means unquestioned property rights for everyone. Native Americans held the notion that we don't have the right to claim pieces of earth for our selves. Violating the earth and taking her coal, gold, oil, and covering the land with concrete and blacktop, may be as much our right as raping a woman?
Yes. I'm addressing what I think we can fairly call the modern view of rights, as something we're all entitled to regardless of the law. While I think it's possible to construe ancient law as including what may be called "rights" in some circumstances (like the fact a Roman citizen could appeal to the Emperor) to the extent it's based on consideration of what is due to a person under the law, legal rights are something I accept as "real" (there's not much choice after all).
I think the notion that we're all entitled to rights regardless of the law wasn't an emphasis of natural law as it was considered by the ancient jurists and philosophers. Natural law to them established, and provided guidance in determining, right conduct. It didn't provide a basis on which various entitlements could be claimed and demanded by each individual.
On what basis is their conduct objectionable, if it doesn't involve infringing the rights of others?
I don't understand how your example establishes the ancient Greeks believed in natural rights as distinguished from natural law.
I suppose the basis would be intolerance and superstition. History is filled with beliefs, expressions, lifestyles, religions deemed objectionable and unacceptable and worthy of sanction.
So do you have a sort of history of how it went from Natural law as right conduct to Natural law as entitlements? I can think of John Locke perhaps. Life, liberty, property are basic freedoms that should be protected by governments, according to him.
It's not something I've studied in any detail, but my guess would be that the emphasis on individual natural rights started to take place in the 17th century, and certainly Locke is one of the pioneers in that approach. Rousseau would be another. I think that from roughly that time to the present the concern became to determine what individuals should be free to do instead of what people should do. What they should be free to do could be determined through reference to natural law, but the interests of the individual became predominant. So, natural law theory began to change (I won't say mutate). Perhaps this took place because certain citizens of influence began to be more able through resources available to them to satisfy their own desires and interests, and wished to do so without restraint by others or the government. Philosophical grounds were sought to provide a justification for the unrestrained satisfaction of individual interests.
I would propose that we're inclined to find and should find certain conduct objectionable, or ignoble, even if it doesn't directly infringe on what we consider to be the rights of others. So, what is proper conduct isn't limited by considerations of claimed rights of each individual.
I agree with that. Even so, we should defend their right to engage in that conduct, and for the same reason we would do so for anyone else.
I’m reminded of the Jewish refugee from Nazi germany, Aryeh Neier, who while director of the ACLU defended the free speech rights of American Nazis to hold a rally in Chicago neighborhoods where many Holocaust survivors lived. Clearly the Nazi’s behavior was objectionable, ugly, and immoral, but the ACLU was right and moral in defending their right to engage in such conduct.
Yes, but you would have to really follow the history. Can you juxtapose what came prior to the Enlightenment as more communitarian vs. the individualistic Enlightenment and post-Enlightenment emphasis? So it looks like you are saying Roman law emphasized how one was in relation to the government- duty to be in the army if citizen, how one can access courts or petitioning the Emperor directly, etc. However, there was never an emphasis for the freedoms of individuals. That is to say, how individuals would not be impeded by the government. So freedoms were mainly based on access to civil societies. This changes in the Enlightenment when individuals were no longer binding to institutions like lords and church officials. Rather, people were beholden to the markets, and property was a large part of protecting this new social arrangement. In the middle ages, the producers and merchants took a back seat, but once monarchies aligned with the interests of producers and merchants (mercantilism), and then the free-markets started moving away from the mercantile arrangement of state control to a free-market model, the individual and property became that much more important for individual reasons. Thus life, liberty, and property does seem more important. But there's obviously something more here than economic arrangements. Freedom of speech for example, and freedom of religion. I think it is a reaction to Church stifling of all sorts of speech. No empirical research that contradicts the Scholastics and Aristotle. No speech that does not comply with the Church's doctrine. Then there was what was going on in Protestant countries. Much of it was in response to kings like Charles II and James I and II etc. etc. But who was trying to have their free speech? The merchants of course. The middle classes that started having more of a say in what was going on in the nation. Thus the Netherlands had their various merchant states meeting. The English started moving from an emphasis on lords and hereditary status to merchants having a voice. These merchants made money on technological innovations of sorts.. clothing, steam, coal, etc. They needed to get more open information so they could invent more things to make money. Freedom of speech, press, etc. is needed for this type of exchange.
I don't know, I am just providing some sort of outline.
If ancient Roman law held that all men were created equal by virtue of nature (https://www.politicalsciencenotes.com/cicero/political-ideas-of-cicero-natural-law-equality-and-idea-of-state/1039), then wouldn't this natural law concept necessarily translate into some form of natural right? Surely if I'm equal to you by virtue of my humanity, there must necessarily be some rule that if applied unequally would result in a violation of my natural right to be treated fairly.
We might debate what those specific natural rights are that flow from the general principles of natural law, but that doesn't mean they do not exist. For example, my right to free speech might be argued to exist by virtue of my right to speak my mind just as you can speak your mind and just as any elected official might speak theirs as we're all equals created to do justice. If natural law states I am to do justice and that is part of my creation, my right to free speech does appear to flow from that and is therefore a natural right.
I suspect the ACLU was defending a First Amendment right, which is dependent on the law of the U.S., not on a natural or universal right apart from the law, though. I'm not sure, however.
It may not be a virtue but self-interest is why most people do what they do. If laws weren't in place to protect our interests then we would be less compelled to follow them (edited).
Well, it's been argued (by Grotius, for example) that the Roman conception of natural law, and even its institutional law, recognized the concept of individual rights even though that concept is never mentioned in the ancient sources. I wonder whether he was correct, however, or merely seeking justification for the concept in Roman law.
I think the argument can be made that natural rights arise from natural law, but it seems to me that that to the Romans, natural law didn't extend to a belief in universal individual rights as we would think of them. In fact, it appears Roman jurists didn't associate individual rights with natural law. For example, slavery was sanctioned by the law in the late Republic and Empire although it was acknowledged that under natural law all men are equal. So, the jurist Ulpian wrote this about slavery:
"As far as the ius civile is concerned, slaves are not
regarded as persons. This, however, is not true
under natural law, because, so far as natural law is
concerned, all men are equal."
And according to Florentius:
"Slavery is an institution of ius gentium by which
one man is made the property of another contrary
to nature."
What I think is striking about these statements is the absence of any positive expression of the belief that slaves have the natural right to be free. They're equal to their masters under natural law, but are slaves nonetheless. Slavery seems to be taken for granted, and I don't think it would be if natural rights were accepted.
It may be more accurate to state that we would be less inclined to follow them absent the protection.
I know. I don't know if I could do more. I can see that as authority came to be questioned and the advantages of unrestrained thought and conduct came to be recognized, the rights of the individual came to be seen as more and more important.
Yes that would be more accurate.
And there's the similarity in American law, where our Declaration states we have an inalienable right to life, liberty, and the pursuit of happiness, but the pre-13th Amendment Constitution specifically protected the institution of slavery. What this means, I suppose, is that the Romans and the Americans were willing to accept that there is a right way to do things and then there is the way things are going to be done.
So, if the Romans permitted slavery, they would be admitting their law was unjust and not in compliance with the way things ought to be. While the leaders may understand the citizens' protests against the government policies as being inherently unjust and in violation of the way nature means things to be, they wouldn't feel compelled to change the law because Caesar gets to do what Caesar wants to do.
I would then think that at some point in the evolution of society, leaders would feel compelled to pass laws consistent with their most fundamental principles. This drive to be consistent and to do right in the law would not actually compel the leaders, but it would just be a drive, fully subject to being ignored as the leaders saw fit. This moment in time would be consistent with the positive law system you advocate.
I would think, though, that at some point in the further evolution of society, a belief would form that no government could withhold what nature endowed, forcing the government to change its function from being the creator of enforceable laws that are consistent with natural law to being the protector of rights derivable from natural law. This moment in time would be inconsistent with your positive law system, as it would signal a shift to a natural rights system.
A question I'd submit to you is that If we're both in agreement with what the law ought to be (e.g. there should not be slaves), and we're both in agreement as to why the law ought be as it is (because natural law dictates such things), why would you want to maintain a system that allows government to pass laws that it shouldn't? Why don't you see the evolution toward a natural rights system a step forward? As you present it, you portray this step as a misstep.
This is to say that if your historical analysis is correct that ancient Roman law did not recognize the concept of natural rights, why would you want to protect that ancient system, especially when it appears that the direct recognition of natural rights is an evolutionary step forward because it protects us against unjust governments and actually declares laws that are passed that are not in compliance with natural law beyond the charter of any just government?
Very briefly, I am Jewish, married a non-Jew, my marriage being entirely unrecognized by Jewish law, finally ending in divorce. I am now engaged to a baptized Catholic, who is divorced from a non-Catholic, married in a non-Catholic church. That marriage is not recognized as a valid sacramental Catholic marriage, but it is considered a natural law marriage as it arose under all the conditions of a valid marriage (they considered themselves married, exclusive, to be lifelong partners, wanted to procreate, etc.). For her to marry me and wish to be able to take communion and be in good standing, she would need an annulment of the natural law marriage. And making this odder, I would also need an annulment as well, despite being Jewish and formally married to a Methodist because I apparently still remain married under my natural law marriage. To marry me prior to my annulment, even should she receive an annulment, would be polygamy and adultery.
I know all this because I talked to a priest about it, which was an interesting event.
I'm not sure if this story has application here, but it does seems to stand for the proposition that natural law does impart very specific rights and obligations, namely the ability to marry (and all the rights and privileges that implies) and the obligation not to forsake that marriage.
But where great functionaries of a legal system (especially Ulpian--a Praetorian Prefect as well as a jurist) acknowledge slavery is an institution in contravention of natural law, and yet sanction it, I think we have a situation different from the peculiarly American tolerance of slavery. Supporters of slavery in the U.S. (like John Calhoun, for example) didn't think it contrary to natural law. The author (with a little help from Ben Franklin grudgingly accepted) of the Declaration was of course a slave owner, and thought slaves were not the equals of whites. As far as I know, nobody in the U.S. thought slavery contrary to natural law and yet thought it should exist.
Quoting Hanover
I don't think I've ever said government should be allowed to pass laws that it shouldn't. I think laws which protect civil liberties through the creation of rights are essential. I think, though, that rights are appropriately a legal construct to be employed to restrict the power of government. My problem with natural rights--rights which purportedly exist independent of law and are somehow granted by nature or God--is that they're conducive to an ethics which is excessively narrow and limited to consideration of satisfaction of the desires and interests of individuals and their capacity to indulge them. I think there are other problems with the concept as well, such as the complications which arise when individual natural rights conflict, but am not addressing those in this thread.
Yikes. What you've experienced is almost unimaginable even to me, an old altar boy who attended a Catholic elementary school and a Catholic high school for two years, and so has some familiarity with the ornate nature of the doctrine of the One, Holy, Catholic and Apostolic Church.
But I wonder whether what the priest was referring to was more a question of status, and the privileges available to those who attain that status, than what we would think of as rights. That may seem to be not much of a distinction, but I think it has significance.
Of course we have a big problem because we ignored what Jefferson said As though Nature's God had one set of rules for us and another set of rules for "those people".
Jefferson was a hypocrite among other, better things. Regardless of his personal failings and accomplishments, though, I think he was wrong about our being endowed by our Creator with "inalienable rights."
I think the distinction between natural law as conceived by the ancient thinkers who developed the theory and natural rights as conceived for the most part from the 17th century to the present may be as simple as a difference in emphasis, but that difference is significant. That difference arises from the emphasis in natural law theory on what we should do and the emphasis in natural rights theory on what we should be free to do if we want to do it.
Broadly speaking, and for purposes of providing an example of the difference:
The ancients, like Cicero, thought we should act in accordance with reason as exemplified in nature (constituting the natural law). Since law is part of what we do, that should be based on reason as well. Natural rights theorists posit that nature has endowed us with the certain rights we should be free to exercise provided we don't infringe on the rights of others also so endowed. Law, therefore, shouldn't restrict our rights unless by exercising them we infringe on the rights of others.
The emphasis on individual rights may lead to (and does lead to, I think) the view that there is nothing morally objectionable in satisfying our own desires and interests provided we don't directly infringe on the natural rights of others. It may even be admirable to do so. For example, there would be nothing morally objectionable in accruing as much wealth and property as we can, even if it means we are much better off than others and have far more power and influence than others do. We're merely exercising our natural rights. We're not directly infringing the rights of others if they have far less than we do, or nothing at all for that matter. They have no natural right to our support, and the law/government cannot be allowed to require that our wealth be used to support them.
I don't think a natural law theorist would be required to hold a similar view. Right Reason doesn't necessarily justify the accumulation of far more wealth than we can possibly use or need, nor does it necessarily prohibit laws which wouldn't allow us to do so, particularly if it's to the detriment of others even if it doesn't infringe on their supposed natural rights.
You write so beautifully I didn't think I would find anything to argue. However, there are people who would disagree with the above statement. Among some aboriginal people it would be taboo to accumulate wealth and not share. The chosen leader among native American tribes is the one who gives the most. Democracy is about the everyone's welfare. It could be understood as a commitment to support each other.
“The test of our progress is not whether we add more to the abundance of those who have much; it is whether we provide enough for those who have too little.” Franklin Roosevelt
What you said was abhorrent when the church ruled and controlled prices. Communism and socialism focus more on shared wealth than the capitalism of the US and it is easy to find fault with the capitalism of the US. However, the US does tax people and distribute wealth to a limited degree. A minimum wage law, assistance programs take from some to give to others and hopefully most people think this the morally decent thing to do. Many believe this is important to avoiding social problems and the greater cost of incarcerating people. Public education is expensive, but it is an investment that a democracy must make. Divided we fall. United we stand.
Quoting Ciceronianus the White
I think exploiting the land and others for personal gain is hurting the earth and the nation, and is morally wrong. Especially those who are exploiting the earth are stealing from future generations and are being immoral because of how damaging they are. And thank goodness enough people thought slavery is wrong, to stop it but we did not successful give people of color equal rights and now we are paying for that wrong.
Quoting Ciceronianus the White
Right reason is more consciousness than any one person can have. Democracy is amazing because everyone feeds into the consciousness and this brings us to education for all, a national pension plan, and hopefully some day a national health care system. A moral is a matter of cause and effect and a moral nation is one with board consciousness. The US is now divided and its democracy may be self destructing? It is my hope that we will pull through these bad times and come out stronger, but we need to reeducate the masses about democracy before we can defend it. Democracy like a tribe is everyone working together for the good of all.
Unfortunately our industry was based on English autocracy, and in 1958 the National Defense Education Act, ended transmitting a culture for democracy and liberty. Now we are in big trouble. Right reason resolves problems and avoids creating them.
Thank you.Quoting Athena
I don't know for certain, but I think it's likely those cultures/societies have no concept of the individual rights claimed to exist in the modern Western tradition.
Quoting Athena
Yes. But it was a struggle even for that to take place. FDR was condemned for his support of social welfare programs we now take for granted, implemented during the Great Depression, and there were many attempts to prevent their implementation. Congress wasn't formally authorized to impose an individual income tax until the 16th Amendment was adopted in 1913 (there were efforts to impose a tax previously during the Civil War). Income taxation was bitterly opposed. Even now, social welfare programs are condemned as socialist. Many of us are so convinced of the sanctity of our rights that we consider being told to wear masks is a form of tyranny (there is, apparently, a right not to be inconvenienced for the sake of protecting others).
Beautiful! I love your expression of thought! In general this forum is so different from a political forum where people bash heads and no thinks about what is being said. Your comments trigger ideas that are in my head and rearrange them in new ways, new insights. This is the most exciting and pleasurable experience we can have. It is Thomas Jefferson's idea of the pursuit of happiness.
Yes! it is about a concept of individualism. Our Western civilization is very individualistic but not cultures are like this. So it is not just what is wrong with rights but how do we identify ourselves? Are we individuals or members of a larger group, or as I like to think of it, a member of something much bigger than myself. :chin: I like Eastern consciousness and identifying with a universal consciousness.A belief system where the ego is deluded into believing it is the most important. I study history and feel connected with the whole of humanity since the beginning of our time. It is just not my nature to compete for money and power. That is crude and distasteful to me. My value is my mind and my humanness and I strive always to make a contribution to society. I am buying a Thanksgiving dinner for about 100 homeless people and my granddaughter is cooking it. Our value is not in money and I think I may understand our rights differently then you do?
Quoting Ciceronianus the White
Yes, the Western egomania culture has its problems. Yes, the vast majority appear to have extremely narrow consciousness. If the knew better they would do better. :lol: Considering how narrow minded many are, it is amazing the US has done so well. It is amazing that during this economic crisis they are handing out money to everyone to stimulate the economy. I am not sure this free handout is the way to go. I think Roosevelt creating jobs was a better way to go, but at least there is some recognition that a good economy depends on circulating money. But the US has a long ways to go in increasing consciousness. It must be one of the most selfish and economically ignorant nation in Western civilization.
So... have you given up all your worldly possessions very much lately? This is actually a very serious question I ask. If yes, good for you, you fulfil your own definition of virtuous. If not, you have proven that you subscribe to self-interest, and as such, you declare (no, I don't declare that, because my values are different) that you are not virtuous. So in order to win an argument, you shame yourself in the service of it.
You decry certain rights as not virtuous. That is a moral call of no measurable substantiation. I accept that in your eyes they are not virtuous, but if you make the stand that they are not virtuous from any point of view, then I'll dispute that.
So you are saying that in your views, opinions you form are your opinions. That is not debatable.
This, after you avoided the question of the right to own property being equally distributed among the population, which is independent of property distributed.
Thank you!
If it has to do with possessions, it is of course a very serious question.
Quoting god must be atheist
The fact that self-interest isn't a virtue doesn't mean one cannot be self-interested. It merely means that that one isn't being virtuous when acting solely in one's own interest. It means, in other words, that you and I don't show moral excellence when acting solely for our own benefit. There's nothing admirable or laudable about self-interest, but neither is there anything necessarily evil or wrong about. It may be perfectly natural and appropriate depending on the circumstances.
Quoting god must be atheist
I don't think so. I think I merely say that a belief in natural, individual rights may give rise to an ethics which is inappropriately limited, encourages purely selfish conduct and may even be used to justify it when carried to an extreme.
Quoting god must be atheist
I'm quite aware that in this country there is (normally) a legal right to own property. I'm not convinced there's a natural right of that kind, or any kind. I think that the fact there is such a legal right and its extends to most of us doesn't mean that the possession or exercise of that legal right is virtuous or moral in itself. The fact I can or do legally own property and it can't be legally taken from me in most cases doesn't make me moral or virtuous, nor is the existence of that legal right a matter of morality.
I struggled with issues involving self-interest and then I realized even the apple tree that gives freely of its apples has needs. I decided there is no virtue in denying myself but like the apple tree, the better I am nourished, the more I have to give.
I believe the story of the first Buddha begins with excessive self denial. He was not the only one wondering around and experiencing excessive self denial, but many have traveled this path and it can become even an unvirtuous competition to be the one who goes to the furthest extreme. It just is not healthy. A healthy person has learned to take good care of him/her self. :rofl: At my age, the virtue is maintaining independence and not complaining about the unpleasantness of living in this deteriorating body too often.
I must speak to this. There are no rights without duties. The US culture has fallen into a complete disaster because people now believe we have rights without duty. That works about as well as breathing in, breathing in, and never breathing out. We seriously need to rebalance. With rights there are duties. With freedom there is responsibility.
We hear this often, but I wonder what it means, at least in the context of a belief in natural rights. Does it mean there are natural duties as well as natural rights? If so, what are those duties? Is the duty being referred to simply an obligation not to infringe on the natural rights of others? That would seem merely another way of saying natural rights generally shouldn't be violated, which in turn seems to be merely a way of saying there are natural rights.
If we have a natural right to life, what is the duty associated with it without which the right wouldn't or couldn't exist? If there's a natural right to own property, what is the corresponding duty?
Under a natural law position, the duty would be in protecting that right, whatever it may be, from infringement. If you were a natural rights adherent, you would argue that the legitimate duty of the US government (for instance) is to protect our inalienable rights, not create them. If you were a legal positivist, you would argue the US government has no such duty, but that it can create any law it desires, but when it does, it provides you the benefits of that law. It does not protect anything you already have. It creates it and you should be grateful for what has been provided to you.
It's a matter of creation by the government versus protection by the government. Subtle, but important from an ideological perspective, but if you accept the natural law position, the government does clearly have a duty, and it would be an unjust government if it failed in its duty.
You seem to be referring to a duty of government, though. What are the duties of those endowed with the rights, if there are any? Those are the duties I thought were being referred to when it's claimed there are no rights without duties.
If there is natural law, there is natural duty, which I think I described and which would relate to government insofar as what would a just government look like.
As to what natural duties are imparted upon those endowed with the natural rights, that sounds like you're asking what I'm commanded to do by virtue of my humanity. I suppose I would be prohibited from lying and stealing, should honor my mother and father, and shouldn't covet my neighbor's wife, to name a few. To be more secular about this, my duties might entail being a charitable and kind person. Of course Kant spoke about ethical duty, so if you find that persuasive, then the categorical imperative would answer the question of what our duty is as well.
This is an excellent question. So is the question, what does "natural" mean in these expressions.
To me "natural" means, on one hand, nature given, on the other hand, independent of human activity, as at one point human activity was sharply delineated form nature's activity.
In the second sense, there is no natural human characteristics, and activities.
In the first sense, I think natural human rights and ~duties are those that are
1. Inescapable by any and all humans and
2. pervasive across the species.
So what could be defined as natural human rights and ~duties in this sense?
Please feel free to alter my defintions, we already agreed there are no perfect definitions and perfect words for the occasion of any kind.
Can the need to eat food and water be a rigth and a duty? Eating and drinking serve life. Without them life dies.
With the same token, washroom duties and rights.
But is the word "right" right here? or duty? they imply a moral component. Is eating or drinking moral? The act itself, not what you eat.
So I tend to agree with Ciceronianus the White when he questions whether rights exist at all outside of legal contex or political context.
I wish someone here could come up with the example of a right that is truly natural... a right that is born with every person and stays with the person until death, AND which is granted by Mother Nature, not by god or by other humans.
My understanding of rights and duties at the moment, didn't go further than family. If you are lucky enough to have a bedroom it is your duty to clean it up and if you don't the natural consequence is your space will become very unpleasant and you will not develop the strength of character to be an orderly and attractive human being. A responsibility ignored is a lost chance to develop our character, and the negatives build up making our lives unpleasant. If we are so lucky as to have people who care for us, it is our duty to care for them. See how the habit of caring for others, develops our character?
As a great grandmother I can say it can seem near impossible to get children headed on the right track, especially in the culture we have today because none of us are supported by a culture that just puts the rights and duties in the air we breathe, so we assume they are just the way life is and don't even question them. As my statement of rights of duties was just something I assume without thought.
Having a good life is so much about developing the right habits. Confucius speaks of this and I believe it can be found in the Bhagavad-Gita (AS IT IS) a Hindu book. We can think, we have a duty to ourselves to be the best human being we can be, and grow our character by making right choices. From there our family, the groups we belong to, our nation, are just extensions of ourselves. And the laws are natural cause and effect.
As you stated we must eat or we die, but the right to eat demands the right action, or we go hungry. I am working with some homeless people who are driving me crazy because the behaviors are not conducive to having a nice meal. A while, back someone in the forum, argued we get things for free and I went ballistic because mother nature does not take care of us as our humans mothers do. We might get oxygen without effort but I can't think of anything else we get without effort. If you want to eat, you better get up early and study the environment at this moment in time with the sensitivity of wolf looking for a meal. You might for you body and weapons and tools so that you survive a little longer. Sleeping through most the day, waking with no plan, waiting for life to happen to you, might not go so well.
:smile: A right is what gets us what we want. A duty is taking responsibility for doing the right thing. Rights exist as the law of nature and things don't go well when we choose wrongs. Whoo, I want to scream to the citizens of the US "grow up". Only your mother is going to your give you your rights without you fulfilling your duties. Mother nature will not and expecting society to care for you like your human mother once did, is just wrong. However- capitalism is good up to a point and then it turns bad and our government needs to resolve this problem. Like if there is plenty of land for us all to take land enough for a farm simply by being the first ones to get to that piece of land, then government doesn't have to do any more than protect our right to own the land. But when far more people need that land than their is land, government must act for justice and compensate for this demand and supply problem.
Yes, but it excludes the possibility of being virtuous. You have already placed a lot of stake on being virtuous. Being non-virtuous is being immoral... maybe. You argue that not being viruous is not immoral, it is just simply not outstanding moral might.
I actually agree. My objections were made in haste and they were not correct. Carry on.
I wish you'd visit my post there. (Just click on any part of my portion of the quote above here. It will take you there.)
The claim that is no (natural) right without a duty, though, indicates that for each such right, there is a corresponding duty. A duty not to lie, or a duty to honor my mother and father, don't seem to be associated with a right--unless a right to be told the truth exists, or a right to be honored.
The questions I'm (now!) trying to pursue (which I think are still pertinent to this thread) are--assuming there are natural rights, in what sense are duties associated with them, or arise from them? If there are no rights without duties, why is that so? What duties supposedly arise from rights? Are those duties a condition of natural rights--do we forfeit rights if we don't comply with those duties? Doing the right thing wouldn't seem to be dependent on a concept of natural rights.
I'll check it out. Been a bit tied up.
And that could well be what is meant, in which case the duties nature imposes on us become purely negative--we should not infringe on someone else's right to property, right to free speech, right to life, etc. These rights and duties are arguably necessary to restrict the power of government and protect us from others. Understanding that, I think that the concept of individual rights and their sanctity, so to speak, is fundamental to a system of laws. But I think it's flawed as a foundation for morality because it says nothing regarding what we should do, i.e. what positive obligations and responsibilities we have.
Perhaps an argument can be made that natural rights carry with them a duty to exercise those rights responsibly in a positive, proactive sense. I don't like the word "proactive" myself; I mean, though in a manner which, e.g., isn't purely self-indulgent. Maybe that would result in a theory of natural rights which could be included in what the ancients thought to be natural law (I haven't begun reading that book yet, but I will--it looks very good).
I am not aware of what I think until you ask the question. In the process of trying to answer your questions, I figure out answers. This time my thinking led to the conclusion that only humans have duties because their brains can ask why and come up with an answer. (religion is superstitious answers and science works better). Chimps can learn to use a twig to fish for termites in dead trees (technology) but they will not know the life cycle of trees and termites (science). Our duty comes out of what we can know.
:smile: We are born in sin. Sin is ignorance. We are not born knowing right from wrong. We are born with only a few instincts. Animals learn through trial and error and can learn from each other. However, humans are unique in that they question why something is so and come to learn and understand cause and effect. This makes it possible for them to live in unnaturally large groups in increasingly more complex societies. This demands more of humans than other animals.
Social duties arise out of rights. Of course, it is easy to take and ignore our duties, and then blame others for the problems. But those problems are proof of the wrong, proof our failure to fulfil and duty.
Perhaps we are ignorant of what is right or we justify why we can ignore doing the right thing. Both are a failure to take responsibility for our actions. Polluting the land and waters becomes a problem we can not ignore. Media indulging our lowest instincts has encouraged a reality that is unpleasant. Wars are very destructive and the damage of war continues for several generations. On the other hand, I just had an awesome medical procedure yesterday that might extend my life and no other animal can do this. That is, because we can learn and understand so much, we can manifest a better and better reality. We can declare everyone has the right to food, shelter, medical care, and equal opportunity. Because we can do that, it might be our duty to do that? What happens if we think that is our duty? What happens if we do not? Or what happens if people think they have rights and no duties?
.
I find it hard to find the right words to explain how that works, but you made the point I am trying to make. "Reciprocity" is a good word.
In reading old textbooks, I think there was a time when that concept came through education. Old textbooks taught consideration of others. One flat out says, a rich person may not be happy in a way to make someone with less feel good about what s/he has and ware of others. Money doesn't always make people happy. And it explained a rich person has an obligation to share as the farmer shares a surplus of food. That sharing is giving back a small portion of what one has received and hopefully, there is some intrinsic happiness in sharing.
An old health book said when someone comes to your home, you should focus on making that person comfortable and when you visit someone, you should focus on getting along with the people in that home. That is always being considerate of others, and not putting oneself first. We built a culture on virtues that seem to be forgotten in the present as education dropped interest in the humanities and focused on technology and competitiveness.
I disagree. Ancient Western thinkers--I mean Greeks and Romans--felt that what was appropriate according to natural law could be determined in part from the fact that we're social animals. It's our nature to live in communities. It's a view which is, I think, foreign to the view that we're by nature individuals, each with inalienable rights; in effect, antisocial animals. The individual is of primary importance and is to be protected from the community (and government) according to the modern conception of human rights. There are no obligations to be considerate, or kind, or noble, or honorable towards others, or even to be honest. One need only forego violating their rights.
:grimace: What you said is true and is why I make my arguments! The Greeks held that the purpose of birds is to fly, horses run, and humans think, right? The polis is natural to humans, and during this pandemic that should be obvious to everyone. We hate isolation! Some of us also hate overcrowding and living in a multiple story apartment is not my idea of a good life. But most of us would choose the apartment over too much isolation. My X kept the family isolated and I thought I was going to loose my mind. That was before computers and the internet and I feel so sorry for all the pioneer women who lived on farms miles from others and lucky if they could go to church once a week. So we think and we need each other.
I would say, we also need all those values of which you spoke and the Greeks strived for human excellence. I think humanity is far better off when the culture promotes those values and motivates people to be the best they can be. This is truly the point of democracy. It is the dream of the enlightenment that we lift ourselves out of the dirt and do a little better than beings made of mud and born in sin.
Our liberty is the right to decide the right thing, not the right to say or do anything we please with no more self-control than a 3-year-old.
Then I must have misunderstood. You seemed to be saying duties derive from rights. I don't think they do, unless "duties" consist solely of the duty not to infringe on the rights of others
I will quote from an explanation of Confucius.
"A character disciplined by ren (love) is the ideal in morality and goal of education. How do we attain this goal? In the Analects Confusius provided a very clear answer: the transformational process leading to the realization of ren is the practice of li. The English translation of li has been "rites," "ritual," "proprieties," "ceremonies," "courtesy," "good manners," "politeness." and so on."
I am calling all of the above "duties". To be transitioned to a higher form of human we must perform our duties, the same as we must nourish our bodies with food and water, exercise and sleep. Failure to do so is to remain as a base human, always experiencing need and unpleasantness, lack of love. It does not stop at not hurting others, because it is about how we develop ourselves and experience life.
"Reciprocity" is a good word.
Above is the mention of the word "virtues" and in the past, we thought "virtues" is a synonym for "strength". If we perform the duty we are strengthened in virtue.
I'm not sure. It would be interesting to see when they first thought of negative and positive freedom. Eg. freedom from interference and actively creating choices to maximise freedom. In the latter we recognise there's a duty to save people from certain death, to create the circumstances that they can be the best person they can be, etc. That's not just respect for another's rights. We can imagine duties to exist without an underlying right to exist. That might be already in Aristotle his time as part of his idea of flourishing. Maybe @180 Proof knows more?
It certainly is part of collectivist philosophies but those are relatively young.
I saw a show last night that makes me think I should concede to you and say any ideas of rights and duties are man-made. We can realize them and live by them, but nature does not force us to do either. We can remain brutish and treat each other very badly and survive. I think I was arguing out of my bias, not totally fact-based. However, I am extremely thankful that I live in a society where at least half the people believe we have rights.
But if we assume we have duties I don't see them as negatives. The virtues are positives. Hopefully, we have people who have the courage to stand up for what they believe is right. We may have the duty to be honest and we might see leadership that lies to us as very dangerous. Our liberty is the right to decide what is the right thing and only highly moral people can have liberty. Oh dear, I am back in the argument that we have to get it right if things are going to be good. But nature will let us get away with being brutish.
So am I. But those rights exist only to the extent they arise from the law. Even if they do, I think it's clear enough that other people, if not the government, would gladly trample on your rights or mine if they saw fit to do so, particularly if they felt their rights were threatened in some self-serving manner. Their rights may not be restricted; if they conflict with those of others, why should those rights be considered superior to their rights? What standard is to be applied when rights conflict, apart from a legal standard? If there is a standard to be applied in that case it must be one based on something other than the rights themselves, which indicates that a theory of morality based on supposed natural or inherent rights is lacking.
I agree, and think this indicates that rights and duties are not intertwined, dependent or complimentary.
China is arresting people who say things China's leadership does not want to be said. So a government does not have to protect freedom of speech, or does it? There are universal laws and man laws. Is denying people the right to speak going to make things better or worse?
When it comes to the law we create, even in the U.S., there is no law which requires the government to protect freedom of speech. There is no affirmative obligation to do so. Pursuant to the Constitution, government is prohibited from adopting laws which unduly restrict freedom of speech or acting to repress it. It isn't required to protect freedom of speech, but is instead forbidden to restrict it.
If we depart from the laws we adopt, then an argument can be made that freedom of speech should not be restricted according to natural law. But I would maintain that it ought not to be restricted on that basis because it would be unjust to do so--it would be the imposition of the will of the government and particular points of view without basis--not because there exists a "natural right" to freedom of speech. Repressing freedom of speech would be improper for that reason, not because we all have the "right" to speak freely.
“For there is but one essential justice which cements society, and one law which establishes this justice. This law is right reason, which is the true rule of all commandments and prohibitions. Whoever neglects this law, whether written or unwritten, is necessarily unjust and wicked.”
? Marcus Tullius Cicero, On the Laws
“God's law is 'right reason.' When perfectly understood it is called 'wisdom.' When applied by government in regulating human relations it is called 'justice.”
? Marcus Tullius Cicero
Hate speech does not lead to justice, does it? Hate speech is harmful is it not? That which is harmful is immoral and must not be tolerated or the whole nation falls into immorality. This is a higher law based on right reason. On the other hand, our freedom to reason is different from hate speech, isn't it? In the book "Thinking, Fast and Slow" Daniel Kahneman, differentiates an automatic reaction from thinking. This makes freedom to reason different from saying anything we want to say.
Adam Smith is working with Cicero's understanding of law and justice. In the quote he is speaking of the British attempted to control trading, protecting a few with exclusive trading rights from the many wanting to engage in trading. He is holding an idea of natural law and justice that is right reasoning but not the written law.
"Thirdly, the hope of evading such taxes by smuggling gives frequent occasion to the forfeitures and other penalties, which entirely ruin the smuggler; a person who, though no doubt highly blameable for violating the laws of his country, is frequently incapable of violating those of natural justice, and would have been in every respect, an excellent citizen." Adam Smith
The quote from Adam Smith is interesting. Before him, Hugh Grotius relied on natural law as a basis for freedom of the seas/trade. Grotius is considered a pioneer of international law. Given the absence of any written law in that area (except to the extent treaties were made and honored), there wasn't much else which could be relied on in claiming that there was such a thing as a law among nations.
Hate speech is an example of the conflicts which I think arise, inevitably, from insistence there are natural rights possessed by each individual. On what basis could objection be made to hate speech if the speaker has the natural right to speak freely, and what would justify its suppression? Hate speech doesn't infringe on the natural rights of others to speak freely. Is there a natural right not to be exposed to hate speech, or other speech (that's a rhetorical question)?
It happens there are restrictions to the legal right to free speech which have been developed in case law in the U.S. The courts recognize what are called "time, place and manner" restrictions to which it's subject. Legal rights aren't absolute; that's one of the reasons why legal rights have a place in the law. Are natural rights absolute, provided their exercise doesn't infringe the natural rights of others? If so, I think that's a problem for natural rights theory.
As for the hate speech, we can begin with the universal do unto others as you would have them do to you, and don't do unto others as you would not have them do to you. Hate speech is going to cause trouble, so it is just wrong, and because it is wrong, it is not right. We can not tolerate wrongs because of the damage they do.
Our laws might not be absolute but I believe cause and effect are consistent, which focuses me on Cicero. I love his explanation that no prayers, animal sacrifices, or rituals are going to change the consequences of our actions. Man-made laws may be ignorant of natural laws and for this reason, we must have freedom of speech to correct faulty reasoning.
current distinction between rights and guarantees is just an elegant formalism intended to illustrate the fact that not every right that is proclaimed is an effective right. Law and guarantee are not really distinct
species, but a single species accompanied by two accidents: when the guarantee is still a promise, a commitment, an assumed duty, it is called “right”; it starts to assume the name of guarantee itself when this promise is invested in the concrete means of being fulfilled. The notion of “right” has no substance except as a guarantee promise, the guarantee means nothing if it is not a guarantee of fulfilling a previously signed commitment. For this reason, the legislator who enacts a law that has no means of being enforced already repeals it in the very act of signing it: ad impossibilia nemo tenetur.
The right is, therefore, a kind of guarantee — a guarantee of the exercise of power — and nothing
more.
However, the opposite is not true: not every guarantee is a right. Suppose I abandon these philosophical chores and become a bank robber. While, armed with a pick, I break and empty the safe, my partner, equipped with a machine gun, will guarantee me the possibility of doing so, keeping the guards at a distance: this will not make him a guardian of my rights.
In order to distinguish the law from other types of guarantees, it is necessary to highlight these two characters more: reciprocity and sociality. A guarantee is a right when it is reciprocal (in the legal sense) and when it compromises, at least in principle, an entire society, not just isolated individuals or groups.
Legal reciprocity, as Miguel Reale has already explained, is that the right of one corresponds to an obligation for another. We will see later what is an obligation. For the time being take that word in the current sense and consider the following obviousness: it is only necessary to say that a child has the right to food if someone, at the same time, has an obligation to feed him. A right exists only when it exists and the holder of the corresponding obligation is clearly indicated. If this does not exist or is blurred, the law becomes a guarantee that no one guarantees and is a mere flatus vocis.
Finally, since the right is the guarantee of the exercise of a power, and a power cannot be guaranteed except by a stronger power, independent of it and pre-existing to it, the holder of the obligation must necessarily possess some power that the holder of the right, per se, does not have. But since the
exercise of the necessary power to guarantee the exercise of the right of others must also be a right, this must in turn be guaranteed by another power, and so on, which would result in an ad infinitum retreat and would make it impossible for any right if a second and more subtle meaning of legal reciprocity did not intervene there, which can be stated as follows:
"for a right to exist, it is necessary that, if not always, at least in certain cases, the holder of a right be also holder of the obligation to guarantee in turn someone the exercise of the power necessary to guarantee that right"
Thus, for example, the mass of citizens has the right to police protection only insofar as it also has certain obligations that guarantee the police authority the exercise of its functions, such as the obligation to pay the taxes with which the corporation of the police will be sustained.
I will call the reciprocity of the first type direct; to the second, indirect. Direct legal reciprocity exists only between holders taken two by two: two individuals, two groups, two companies, a buyer and a seller, father and son, etc. Indirect reciprocity, by its very nature, is only achieved through the complex network of obligations and rights that constitute the entire legal system in force in a given society. This constitutes precisely the second specific character of the law, which is its sociality: there is no right outside the legal system in which all the guarantees and obligations in force in a given society are expressed. There is no isolated right, loose in the air, outside the support of the system.
Direct reciprocity is structurally equivalent to a simple mathematical proportion: a / b = x / y, that is: a has the right b to the exact extent that x has the obligation y. The formula for direct reciprocity is therefore the
perfect equivalence, or quantitative equality, of a right and an obligation, without leftovers or absences: children under the custody of the divorced mother are entitled to an alimony of x dollars to the extent that the divorced father has the obligation to pay them the same amount, neither more nor less. In cases where the law in question cannot be expressed quantitatively, the problem of the judge — the problem of justice — will be to find the most perfect equivalence possible between qualitative values. But, whether by the exact calculation of quantities, or by the ideal balance of qualities, direct reciprocity is always and only in equivalence, that is, in the idea of quantitative equality and leveling of differences. None of this occurs or can occur in indirect reciprocity, where only by a very rare exception can the guaranteed right be quantitatively equivalent to the obligation that the holder of this right has towards the authority that
guarantees it. Just to give a strident example: if, of the total taxes that the State collects from a citizen, say, one thousand dollars in a year, only the tenth part — one hundred dollars — goes to the maintenance of public health care services, this does not mean that this citizen should be entitled
to only one hundred dollars of medical assistance per year.
If the direct reciprocity consists of equivalence and leveling, the indirect one, on the contrary, consists precisely of differences and unevenness that cannot be compensated one by one and that, as it rises from plane to plane in the order of complexity and scope of relations, increase with the increasing amounts of power necessary to guarantee the rights of everincreasing groups of people, so that one can only find some kind of unity, equivalence or proportion at the last level, that is, at the level of total
system, the legal life of the whole society. It is also evident that direct reciprocity, covering its holders two by two, does not exist outside the indirect, that is, outside the system. Direct reciprocity is an abstract or potential right, which only takes on a concrete existence in the life of the total system. On the other hand, the network of indirect reciprocities would be of no value if it could not guarantee the predominance of law among the members of society in their relations of direct reciprocity, that is, the realm of equivalence.
There, however, a problem arises As a guarantee, it is an effective exercise of the power of the powerful man to assure the less powerful the possibility of exercising the power that belongs to it, not only the total legal system is hierarchical in itself, in the logical sense of a deductive system that descends from the fundamental norms to derived norms (in Kelsen’s sense), but, as a practice and reality, it only exists as an aspect and expression of the total system of powers, and is therefore doubly hierarchical.
Hierarchy is subordination of the multiple to the one. As an reality, embedded in the total system of powers, the legal system is a hierarchical unification of multiple strata of obligations and guarantees, one
subordinate to the other according to its greater or lesser importance for the functioning of the system as a whole. In this sense, the maximum rule of the system is its own sovereignty: there is no right above the total system of rights and guarantees, or, in other words, no isolated right or group of isolated rights can prevail over the total system that guarantees them to all.
But if the network of indirect reciprocities that make up the total system is governed by the principle of subordination and vertical unity, and if each right guaranteed by direct reciprocity is governed by the principle of equivalence or leveling, the contradiction between law as a total system and the law as the norm of direct reciprocal relations can only be eliminated in a society that succeeds in producing the perfect identity between the vertical hierarchy of power and equality between individuals. This is, however, impossible not only in practice, but even in theory, since law being the possibility of exercising power, perfect equality of rights would require an equal distribution of the possibilities for exercising power, in which contradicts the very idea of the hierarchical structure necessary to maintain
the system and guarantees.
It follows that the principle of equality before the law, if taken in a literal, flat and atomistic sense, considering only individuals as numerically distinct and qualitatively identical entities, contradicts the very idea of law as a concrete obligation to respect rights. No existing society has escaped this contradiction, nor will any society that may exist.
The contradiction between law as a system and law as the norm of relations between individuals has no logical solution, nor should it have, because it is constitutive of social life itself, where each individual is both totality and part on two different levels, without being able to reduce them to one, which would imply the perfect and impossible identity of their bodily individuality with their place and function in society, or, in other words, the final identity of nature and society. Justice as a social ideal therefore consists
only in reducing this contradiction to the minimum tolerable, and not in seeking to root it out. It is not entirely accurate to say that human justice is imperfect, because there is no imperfection in a thing being what it is, and human justice has the perfection of the provisional arrangement and the art, indefinitely variable and never exhausted, and not that of the ideal eternal norm that it somehow imitates and in which it is inspired.
Every attempt to bring human justice closer to ideal perfection has resulted and will necessarily result, either in demolishing the system of guarantees in the name of abstract equality, or in suppressing guarantees in the name of preserving the system, or in alternating these two evils. Among other practical conclusions that can be drawn from this is the following: the life of democracy does not depend on the maximum realization of justice in an abstract sense, but on the dynamic, dimensional balance between the ideal of justice and the concrete requirements of the system that makes it possible to seek justice.
The word "rights" carries quite a bit of baggage. If you mean to say that a right to do X exists if doing X cannot be prohibited or restricted by any legal means, i.e. to the extent the holder of the right has recourse in the law if it's restricted--then I agree, as I've maintained that only legal rights exist. Maintaining that a right exists when there is no recourse, sanctioned in the law, if it's violated, for me, is the equivalent of saying that a right should exist in the same sense a legal right exists, but does not. So my references to rights in this thread have largely been references of claimed rights which aren't legal rights.
I'm not entirely clear whether what you refer to are legal rights, or non-legal rights. I don't understand what's intended by the language you quote, which I've copied above. It seems to me that a person with a legal right doesn't accordingly "guarantee" anything, to anyone. I don't "guarantee" the police power of a state when I pay taxes. I would have no obligation to do so in any case. If I fail to pay taxes, or violate the law, I don't forfeit my due process rights, for example. My possession of a legal right isn't necessarily contingent on a "guarantee" as I understand that word.