disorderlyvision
10-06-2009, 01:34 PM
http://www.wirkman.com/Wirkman/Netizen/Entries/2009/9/28_Defining_rights.html
Rights are instruments of human ends, but they primarily serve those ends by delimiting human means. They are best understood as legal concepts first and as moral concepts second. If you lead with the “should” (the moral) you often confuse yourself on the “is.” The history of rights theory is littered with bad definitions of rights, with whole rights philosophies that seem designed to not convince anyone of much of anything.
I was reminded of this in the course of Tom Knapp’s posts (on Knappster) against the term states’ rights, and Stephan Kinsella’s learned comment on Tom’s argument. I responded to both bloggers on their very own blogs, and am now thinking about the subject again. The first issue to brush away is, well, how odd it is to be discussing Constitutional law with fellows who describe themselves as anarchists. But hey: I’ve read Lysander Spooner. I should be used to this by now.
Elsewhere on StephanKinsella.com you can watch Tom Woods lecture on individual rights. Woods begins with a definition of what a right is, one provided by my favorite Rothbardian philosopher, Father Guido James Sadowsky: “When we say that one has the right to do certain things we mean this and this only, that it would be immoral for another, alone or in combination, to stop him from doing this by the use of physical force or the threat thereof.”
This is a good definition of the right to liberty. But it does not well explain my right to ten dollars, loaned to a friend. My right to ten bucks is a specific, not general, right, and it is to a specific thing, not mere forbearance.
So what does a “right” mean, at base? What definition might encompass all (or at least most) uses?
I made one up years ago (cryptomnesia alert: I probably got it, at least in pieces, from someone else — I don’t remember whom . . . Bentham?), and it still seems to serve well, or at least better than Sadowsky’s: A right is a claim to obligatory treatment. Or, one could say, a right is a claim to an obligation. I sometimes add “ostensibly legitimate” as a modifier of “claim” because some people hyper-narrow the meaning of the word “obligation,” and will use the term in only a very limited way. I’m using it as broadly as possible.
In practice, obligation or “obligatory treatment” means “legitimately compelled.” If I have a right to liberty, than you may be lawfully and morally compelled to respect my liberty by refraining from coercing me.
That merely repackages Sadowsky’s foray in definition. But what about less general rights? My right to ten bucks, for instance, means that, should you not surrender the ten bucks, I (or my representative) may legally compel you to do so.
As such, rights are articulations of threats. To assert a right is to say, in somewhat nicer terms — terms that our fellows in society might buy into — that I or others will use force to defend whatever is the object of the right.
Indeed, my definition is part of an articulation theory of rights. And this theory is a subset of a praxeological understanding of social systems. I recognize that, broadly speaking, there are two primary manners in which a person may initiate a systemic approach to the treatment of others: threats and enticements. A mutual enticement system is voluntary co-operation through trade, for example. A mutual threat system might define the boundaries between two men, or two tribes, or two nations, with each party declaring an intent to fight if so-and-so happens, or “this line is crossed.”
Threat systems and enticement systems do not exhaust the systemic co-ordination of acting people into society (there are mere informational signalling systems, for instance, and empathy can radically repackage threats and enticements), and they often exist in combination forms. Rights may articulate threats, but they also offer a number of subsidiary enticements.
At this point it can get rather complicated. Somewhere in a box here in my office I have my notes to my work done on this topic over 20 years ago. I’m not sure I could lay my hand to those notes, now, if someone expressed any interest (no one, I assure you, ever has). My memory of my full meta-explanation of rights is failing me now. I could ball this up. Still, I’ll try to sketch out a few more wrinkles to the theory, at risk of misquoting myself, so to speak.
My full definition of a right was something like this, I believe: A right is the positive, beneficiary focus of an articulated threat whose negative, targeted focus is an obligation.
An obligation is legitimately coercible action or results.
Further, rights can be said to inhabit several dimensions:
1.Universality. A right may be said to be possessed by only one person (the divine right of kings) or all people (every human being’s “natural” right to an equal liberty.). The dimension of universality consider how far in the populace the right should be extended.
2.Fundamentality. Some rights breed other rights, through legitimate action . . . or breaches of said action. A right to liberty can yield a right to recompense, or a right to retaliate and even punish. Other rights can only entail very limited recourse. So the right to liberty is said to be a fundamental right, while my right to ten bucks, via contract, is a specific right, not fundamental at all — it derives from the more fundamental right.
3.Focus of targeting. [I had a nice one-word name for this, but it lies buried in my notes.] A right may obligate one person, or a hundred, or all. The focus of the targeting is very important for determining what kind of right it is we are talking about. The historical “divine right of kings” allegedly obligated all subjects of a dominion; the father’s traditional right to obedience obligated only his wife and children. The scope of the embedded threat in the very issuance of the claim varies. An egoist might assert a right to liberty, obligating all, but insist that his right is peculiar to him, and not universal.
There’s also the question of “depth” of obligation. A liberty right entails a minimal burden in its obligatoriness, while a sustenance right entails much, much more. In any case, a liberty right, in libertarian theory, is universal, fundamental, and broadly obligatory, according to the three categories above.
The reader should note that my definition incorporates quite a variety of rights, some of which I approve, many of which I do not. Liberty rights, yes: A right to liberty obligates others not to initiate coercion. But also a right to sustenance is understandable under my definition. A child’s right to sustenance might obligate all, if understood on the same dimensional level as a liberty right, but its targeting focus could also be more narrow: A child’s right to sustenance may obligate only those who harbor the child. Or, say, “just the parents.” One may assert a child’s right to sustenance and need not take up the burden of every waif on the street. But if one does do so, either “alone or in combination,” one may not enslave the child, or starve it.
It may be worth noting that I abandon one of the major proposed divisions of rights offered this century (Hohfield, I think, but widely accepted by others) — that between claim rights and liberty rights. To my way of thinking, all rights are claim rights, or, indeed, artifacts of a particular kind of claims-making. Liberty is just a very general and spectacular thing that can be claimed, with special characteristics that cannot help but separate it from rights with other obligations.
My approach beyond definition is to ask the eminently practical question, when rights come up:
(1) What rights are we talking about,
(2) to whom should they be granted, and
(3) why?
The standard “naturalistic” approach to rights tries not to engage in this practical inquiry, but, instead, talk about what rights “exist.”
My approach challenges the question of existence: In what jurisdiction or venue does the right exist? In the jurisdiction of State X at time T11 the rights that exist are the ones that are articulated in society, respected by the bulk of its members, and defended by some ostensibly legitimate power when the treatment specified by the right is not practiced.
The naturalistic approach asserts a metaphysical realm in which rights exist, but which (usually) have no practical bearing. The “why” of granting rights is tidily summed up in “they exist by nature” or somesuch and that “it is the only moral thing to do” to instantiate in practice the rights that exist on this weird metaphysical plane.
We can play that game, but I think it ignores the problems of moral diversity and the grand diversity of values and the subjectivity of same. It forces the argument into metaphysical speculation when, often, practical matters convince better.
And since metaphysics has less general agreement in the world than even a controversial a subject as economics, I find the metaphysical approach of rights naturalism to be largely useless.
And yet, as I said, I can play the game. And the game does have its attractions.
Still, I think we can advance a universal, fundamental right to liberty, obligating all to refrain from coercion, far easier with real-world economics, sociology, and the like, than with metaphysics. The whys of liberty are not super-mysterious.
In any case, one cannot really defend freedom without an understanding of rights. They are indispensable tools. But like all the tools of morals and law, they can seem mysterious, and are worth clearing up before proceeding on to improving the institutions of society through reform . . . or revolution.
Rights are instruments of human ends, but they primarily serve those ends by delimiting human means. They are best understood as legal concepts first and as moral concepts second. If you lead with the “should” (the moral) you often confuse yourself on the “is.” The history of rights theory is littered with bad definitions of rights, with whole rights philosophies that seem designed to not convince anyone of much of anything.
I was reminded of this in the course of Tom Knapp’s posts (on Knappster) against the term states’ rights, and Stephan Kinsella’s learned comment on Tom’s argument. I responded to both bloggers on their very own blogs, and am now thinking about the subject again. The first issue to brush away is, well, how odd it is to be discussing Constitutional law with fellows who describe themselves as anarchists. But hey: I’ve read Lysander Spooner. I should be used to this by now.
Elsewhere on StephanKinsella.com you can watch Tom Woods lecture on individual rights. Woods begins with a definition of what a right is, one provided by my favorite Rothbardian philosopher, Father Guido James Sadowsky: “When we say that one has the right to do certain things we mean this and this only, that it would be immoral for another, alone or in combination, to stop him from doing this by the use of physical force or the threat thereof.”
This is a good definition of the right to liberty. But it does not well explain my right to ten dollars, loaned to a friend. My right to ten bucks is a specific, not general, right, and it is to a specific thing, not mere forbearance.
So what does a “right” mean, at base? What definition might encompass all (or at least most) uses?
I made one up years ago (cryptomnesia alert: I probably got it, at least in pieces, from someone else — I don’t remember whom . . . Bentham?), and it still seems to serve well, or at least better than Sadowsky’s: A right is a claim to obligatory treatment. Or, one could say, a right is a claim to an obligation. I sometimes add “ostensibly legitimate” as a modifier of “claim” because some people hyper-narrow the meaning of the word “obligation,” and will use the term in only a very limited way. I’m using it as broadly as possible.
In practice, obligation or “obligatory treatment” means “legitimately compelled.” If I have a right to liberty, than you may be lawfully and morally compelled to respect my liberty by refraining from coercing me.
That merely repackages Sadowsky’s foray in definition. But what about less general rights? My right to ten bucks, for instance, means that, should you not surrender the ten bucks, I (or my representative) may legally compel you to do so.
As such, rights are articulations of threats. To assert a right is to say, in somewhat nicer terms — terms that our fellows in society might buy into — that I or others will use force to defend whatever is the object of the right.
Indeed, my definition is part of an articulation theory of rights. And this theory is a subset of a praxeological understanding of social systems. I recognize that, broadly speaking, there are two primary manners in which a person may initiate a systemic approach to the treatment of others: threats and enticements. A mutual enticement system is voluntary co-operation through trade, for example. A mutual threat system might define the boundaries between two men, or two tribes, or two nations, with each party declaring an intent to fight if so-and-so happens, or “this line is crossed.”
Threat systems and enticement systems do not exhaust the systemic co-ordination of acting people into society (there are mere informational signalling systems, for instance, and empathy can radically repackage threats and enticements), and they often exist in combination forms. Rights may articulate threats, but they also offer a number of subsidiary enticements.
At this point it can get rather complicated. Somewhere in a box here in my office I have my notes to my work done on this topic over 20 years ago. I’m not sure I could lay my hand to those notes, now, if someone expressed any interest (no one, I assure you, ever has). My memory of my full meta-explanation of rights is failing me now. I could ball this up. Still, I’ll try to sketch out a few more wrinkles to the theory, at risk of misquoting myself, so to speak.
My full definition of a right was something like this, I believe: A right is the positive, beneficiary focus of an articulated threat whose negative, targeted focus is an obligation.
An obligation is legitimately coercible action or results.
Further, rights can be said to inhabit several dimensions:
1.Universality. A right may be said to be possessed by only one person (the divine right of kings) or all people (every human being’s “natural” right to an equal liberty.). The dimension of universality consider how far in the populace the right should be extended.
2.Fundamentality. Some rights breed other rights, through legitimate action . . . or breaches of said action. A right to liberty can yield a right to recompense, or a right to retaliate and even punish. Other rights can only entail very limited recourse. So the right to liberty is said to be a fundamental right, while my right to ten bucks, via contract, is a specific right, not fundamental at all — it derives from the more fundamental right.
3.Focus of targeting. [I had a nice one-word name for this, but it lies buried in my notes.] A right may obligate one person, or a hundred, or all. The focus of the targeting is very important for determining what kind of right it is we are talking about. The historical “divine right of kings” allegedly obligated all subjects of a dominion; the father’s traditional right to obedience obligated only his wife and children. The scope of the embedded threat in the very issuance of the claim varies. An egoist might assert a right to liberty, obligating all, but insist that his right is peculiar to him, and not universal.
There’s also the question of “depth” of obligation. A liberty right entails a minimal burden in its obligatoriness, while a sustenance right entails much, much more. In any case, a liberty right, in libertarian theory, is universal, fundamental, and broadly obligatory, according to the three categories above.
The reader should note that my definition incorporates quite a variety of rights, some of which I approve, many of which I do not. Liberty rights, yes: A right to liberty obligates others not to initiate coercion. But also a right to sustenance is understandable under my definition. A child’s right to sustenance might obligate all, if understood on the same dimensional level as a liberty right, but its targeting focus could also be more narrow: A child’s right to sustenance may obligate only those who harbor the child. Or, say, “just the parents.” One may assert a child’s right to sustenance and need not take up the burden of every waif on the street. But if one does do so, either “alone or in combination,” one may not enslave the child, or starve it.
It may be worth noting that I abandon one of the major proposed divisions of rights offered this century (Hohfield, I think, but widely accepted by others) — that between claim rights and liberty rights. To my way of thinking, all rights are claim rights, or, indeed, artifacts of a particular kind of claims-making. Liberty is just a very general and spectacular thing that can be claimed, with special characteristics that cannot help but separate it from rights with other obligations.
My approach beyond definition is to ask the eminently practical question, when rights come up:
(1) What rights are we talking about,
(2) to whom should they be granted, and
(3) why?
The standard “naturalistic” approach to rights tries not to engage in this practical inquiry, but, instead, talk about what rights “exist.”
My approach challenges the question of existence: In what jurisdiction or venue does the right exist? In the jurisdiction of State X at time T11 the rights that exist are the ones that are articulated in society, respected by the bulk of its members, and defended by some ostensibly legitimate power when the treatment specified by the right is not practiced.
The naturalistic approach asserts a metaphysical realm in which rights exist, but which (usually) have no practical bearing. The “why” of granting rights is tidily summed up in “they exist by nature” or somesuch and that “it is the only moral thing to do” to instantiate in practice the rights that exist on this weird metaphysical plane.
We can play that game, but I think it ignores the problems of moral diversity and the grand diversity of values and the subjectivity of same. It forces the argument into metaphysical speculation when, often, practical matters convince better.
And since metaphysics has less general agreement in the world than even a controversial a subject as economics, I find the metaphysical approach of rights naturalism to be largely useless.
And yet, as I said, I can play the game. And the game does have its attractions.
Still, I think we can advance a universal, fundamental right to liberty, obligating all to refrain from coercion, far easier with real-world economics, sociology, and the like, than with metaphysics. The whys of liberty are not super-mysterious.
In any case, one cannot really defend freedom without an understanding of rights. They are indispensable tools. But like all the tools of morals and law, they can seem mysterious, and are worth clearing up before proceeding on to improving the institutions of society through reform . . . or revolution.