Saintly Thoughts

Oh the Horror: The Death and Decline of Human Rights

I don't mind telling you that I have come more and more to think that the foundations of that broad category of moral goods and duties we irresponsibly refer to under the unitary rubric of "human rights"--the de-facto public morality of all liberal states--rest on little more than sand and are doomed to fall under the weight of increasing expectations.  The problem is that "right" is a concept derived initially from a consideration of the natural power differentials existent within the state and the necessity of the state recognizing and enshrining such power differentials in the state's conceptualization of itself such that it might attain a certain "balance".  This is the way Hobbes treats what is arguably the first explication of rights language in "Leviathan"--that a person has a right to not give up their life willingly to the sovereign because this destroys the very implicit contract by which the person ceded their natural freedom to the sovereign in return for security.  This argument can be extended (see Spinoza) to a right to free speech based on the sovereign's lacking the power to control internal thought (and prudently allowing for this freedom as a non-violent escape valve to pent up internal frustrations), and perhaps might even be extended to property rights by virtue of the inability of the sovereign to effectively control and manage all material aspects of his realm (though the scope of this "right" qua right seems to necessarily constantly be changing due to innovative factors and societal expectations, and thus might better be served by a purely "prudential" consideration rather than a "rights" consideration).

Thus far, when considering "rights" as a shorthand for the correct power differential between the state and the citizen, I am more than happy to speak of rights.  But rights seem to more and more be a term that we apply to all number of human goods having any tangential relationship to human interaction in the public sphere.  Thus "education" becomes a right, "healthcare" becomes a right, "marriage" becomes a right, etc.  I do not say this to disparage any of these "goods" which I think we should perceive as goods simply.  But, even in a world as abundant as ours, scarcity will always exist, and so to wrap up all perceivable human goods in the language of "right" is likely to only lead to anger and confusion.  For people refuse to perceive that which was promised to them as a "right" is still contingent upon the economic capacity to provide said goods.  

So where did the language of rights go wrong?  This is what really frightens me, for I think that the first use of the language of "rights" which started us down the rabbit hole of incomprehension was its appropriation as a legal construct which could be employed as a means by which minority interests (namely, any interest which exists in society and has not the power to protect itself by other power contingent means from the majority) might protect their interests in a legal manner.  And this frightens me because, for a civilization such as ours, this appropriation was a brilliant and arguably necessary move, but it was the very move that began to sow the seeds of its own destruction.  For, once enshrined in law, rights became a tool of politics by other means, carrying with it both the exalted heritage of an appeal that does not depend upon societal specificity (and thus speaking to some elements of what might be termed "natural law") and the tautology of moral imprimatur which always seems to arise once a concept is enshrined in the positive law (for law once enshrined  creates habits of mind which cause us to mold our expectations accordingly).  Thus the language of rights moves in two fundamental directions at once, to the extrapolation of ever increasing positive rights which will tend to be at odds with the old foundations of "natural" power arrangements within society.  If this program proceeds, the extrapolation and development of the idea will destroy the foundations of the idea itself which first made such an extrapolation possible.  In the end, both the "rights" and the "goods" seem liable to collapse, for a system divided against itself surely cannot stand [granted this statement is somewhat hyperbolic]. 

There have been valiant attempts at stop-gap measures which might save this system.  One such attempt is the conservative effort to enshrine rights in a system of "hallowed texts" essentially deifying the the process of constitutional thinking (and its resulting texts) in an attempt to exclude all newer appropriations of the term.  While this might get us closer to our original conceptualization of rights (seeing that many of these originally enshrined rights pay homage to the older conceptualization of rights as being fundamentally about appropriate power balancing), its method ultimately destroys its object because by enshrining rights as principles deriving from the power of texts and not coming primarily from the nature of the power relationships between various human actors, it begins by misunderstanding that which makes rights a concept with any teeth (one can draw an analogy between this process and the theological fallacy of "sola scriptura").  Another method, which works somewhat better but is still flawed, is the mostly catholic usage of "natural right theory".  While this system is inherently beautiful, it too fails because it attempts to incorporate the ideal of "basic human nature" (whatever that is) as a structural bulwark, giving to rights a metaphysical foundation in the nature of reality itself.  A lofty and elevating project to be sure, but in the end futile because it yet again misunderstands that aspect of "right" which makes it such a beautiful and useful concept: that is, that it does not need to depend upon an appeal to any god or some conceptualization of the philosophical ideal.  Rights language allows us to begin in the middle, and explicate a workable (if imperfect and often evil) system that allows fallible humankind to continue to exist and prosper midst the muddle of existence.

But we weren't content with such a technocratic system and forced rights language to take upon itself the language of moral imperative.  This may not be a bad thing, if the nature of true morality were more properly understood, but we humans are too attached to systems of certainty to take that mantle upon ourselves (I have spoken elsewhere more fully upon the nature of true morality).  And I do not see a way forward to a better understanding of the nature of rights that is not preceded by the collapse of our current model, and all the goods that we have come to love and depend upon in the interim.  And I say this so as not to be misunderstood, this is not some conservative screed against the current model.  I desperately want a system in which those fundamental goods of law, education, medicine, welfare, and human flourishing are allowed to prosper.  It is vitally important to me that this is so and that these goods remain enmeshed in the very fabric of our society.  Mine is a critique of the means more than the ends.  But I do share the conservative fear that underlying all society sleeps a giant of chaos and violence, which if allowed to awaken by a lapse in our vigilance threatens to rend all those goods which we have wrought over centuries.  And I fear that the fallacy lying within the heart of our current conceptualization of rights may be the very thing to wake that beast from his slumber.  

And so I ask you (for I am not clever enough to discover the answer), I ask you what might be a way past this conundrum?  Whereby we may save the structural foundations of our system and yet save also those goods and privileges that we have come to expect as our birthright.  What is needed here is wisdom, fear, creativity, and prudence; those very elements which make up the foundations of political virtu.