Rights: Natural and Legal

Editorial note: the ignorant comments which have been made about this post are addressed here and will receive no further attention.

I have to admit that I find the US concept of rights to be incredibly biased and ignorant.  It seems that they are stuck in the rut of inalienable rights,  natural rights, god given rights, and pre-existing rights.  Various definitions of inalienability include non-relinquishability, non-salability, and non-transferability. If one thinks about it, all those terms are gibberish.

The problem is that rights arise from the actions of government, or evolve from societal tradition. If there weren’t a document upon which Americans could fall back upon, which is the Bill of Rights, they would have no claim to that right–despite the rather nebulous comments in Amendments IX and X. Neither government actions or societal customs can provide anything inalienable. In fact, the concept of inalienable rights comes from the Declaration of Independence, which is a historic document not a legal one (see Article VI of the US Constitution). Thus one can claim anything as a right, but unless one has the assent and support of society, the right is non-existent.

Different philosophers have created different lists of rights they consider to be natural throughout the ages. Critics of this concept have pointed to the lack of agreement between the proponents of natural rights as evidence for the claim that the idea of natural rights is merely a political tool. For instance, Jonathan Wallace has asserted that there is no basis on which to claim that some rights are natural, and he argued that Hobbes’ account of natural rights confuses right with ability (human beings have the ability to seek only their own good and follow their nature in the same way as animals, but this does not imply that they have a right to do so).

Jeremy Bentham denounced the doctrine of natural rights as “simply nonsense,” adding that the conjunction of natural and inalienable rights was “nonsense upon stilts.” Bentham’s objection was both political and philosophical. Bentham was appalled by the abuse of rights talk in order to justify coercive restrictions and individual “leveling” having witnessed the violent consequences of appeals to absolute rights during the French Revolution and its aftermath. While sympathetic to democratic reforms, and no friend of conservative values, Bentham believed that legality constituted the only viable means of securing human liberty. Moreover, Bentham found the metaphysics (whether religious or naturalistic) that supported eighteenth-century conceptions of human rights to be hopelessly outdated and even intellectually dangerous.

Edmund Burke pointed out in his Reflections on the Revolution in France the political terror implicit in the invocation of metaphysically abstract human rights as the foundation of social and political order. Such rights could readily be employed to ruthlessly suppress the existing institutions (the church, class status, governmental units) that constituted the sources of human identity and solidarity, which Burke took to be the real or concrete basis of human rights. As bearers of abstract rights, but without a context in which to exercise them, Burke expected that the masses would turn to an authoritarian figure who would direct them. This expectation was realised in the rise of Napoleon Bonaparte.

The problem is that terms such as rights, freedom, tyranny and so forth can have different definitions throughout time. Likewise, one persons freedom is another’s repression. As Samuel Johnson pointed out about the War for American Independence–“How is it that we hear the loudest yelps for liberty among the drivers of negroes?” and “Slavery is now no where more patiently endured, than in countries once inhabited by the zealots of liberty.” With the most obvious case in point being Thomas Jefferson who spouted the drivel about inalienable rights and all men being created equal while being a slaveholder.

Wouldn’t he not be able to hold slaves if this babble were true?

Thus these are nice terms, but truly meaningless as any person with a mind can figure out. Society is what grants rights and it grants the rights which enable certain minimum standards which are ‘of the very essence of a scheme of ordered liberty.’ It does not grant rights which would create a state of anarchy or otherwise contrary to public order.

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