Rights: inherent or chartered?

2010-08-18

in Geek stuff, Law, Politics, Writing

Reading one of the lengthy historical discussions of anti-Semitism in Richard Rhodes’ The Making of the Atomic Bomb, I came across a section on how Jews made an agreement with Louis the Pious, the son of Charlemagne, to be granted legal protections in exchange for becoming the ruler’s property. Rhodes says that: “Their rights were thus no longer inherent but chartered.” (p.177 paperback)

This made me think about the distinction between how constitutional rights are described in Canada and in the United States.

The Canadian Charter of Rights and Freedoms “guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” It also describes such things as freedom of conscience and religion as “fundamental freedoms,” though it does not directly describe where ‘fundamental’ freedoms come from. Arguably, the preamble to the Charter, which says that Canada is “founded upon principles that recognize the supremacy of God and the rule of law” provides a clue about where the drafters think rights could come from, though it is ambiguous and unclear.

By contrast, the American Declaration of Independence states that it is a self-evident truth “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” It seems clear what the drafters of this document thought about the origin of rights, though this raises the question of what their status and origin are taken to be within a secular state.

I have written before about how I don’t think there is anything inherent to human rights. They are not built into the structure of the universe, and they do not make themselves evident, whole and fully formed, when sensible people think about how human societies should be structured. Furthermore, they are often in conflict with one another, and a simple rights-based philosophy doesn’t provide much guidance on how to deal with situations where different rights-based claims are in competition.

Is it better, then, to have inherent rights or chartered ones? With chartered rights, there is a clear sense of what they are and where they came from. Potentially, there can also be explanation for why they are granted. We could, for instance, explain that freedom of speech exists in our society because we recognize the benefits it creates, and the harms associated with denying it. Inherent rights may, in a certain sense, be more robust. If we pretend that certain human rights really are part of the structure of the universe – or unambiguously derived from thought and logic – then we have a certain defence against the suppression of minority rights by the majority.

Of course, if we are worried about the masses being insufficiently cautious about the rights of minorities, we can express those concerns in a chartered framework. We can underline the value of protecting minority rights, and explain how only granting effective protections against majority bullying can those benefits be maintained.

{ 21 comments… read them below or add one }

Tristan August 18, 2010 at 1:35 pm

Rights can’t have their origin in authority, otherwise, they are no more universal than the authority that grants them.

Milan August 18, 2010 at 1:37 pm

Arguably, it is better when rights have their origin with a clear authority. That way, their nature and justification is clearly spelled out.

‘They come from god’ isn’t a very useful explanation for where human rights come from. It doesn’t, for instance, do anything to help us decide which rights are more important than others, in any particular set of circumstances.

Tristan August 18, 2010 at 1:42 pm

“If we pretend that certain human rights really are part of the structure of the universe”

How can you continue to ignore the distinction between existence and normativity? If certain human rights are universal (which doesn’t mean they are like atoms), this simply means that there are certain conditions imposed on us by the nature of the kinds of beings we are, which restrict how we can treat other beings like the ones we are.

If you don’t think the kind of being you are, and the fact that you are the same kind of being as someone standing in front of you, morally forbids you from committing the most heinous atrocities against that person, then not only do you reject the notion of natural right – you reject the notion that there is any morality other than individual self interest. This would be straight up Hobbesianism – in comparison, Ayn Rand would appear Kantian.

Milan August 18, 2010 at 1:45 pm

So you think rights can be derived in an umambiguous way using logic, and information about the kind of beings people are?

XUP August 18, 2010 at 5:54 pm

I think we can agree that human rights are not inherent. The International Bill of Human Rights gives this as its authority for universal human rights:
“…the right to liberty and equality is man’s birthright and cannot be alienated: and that, because man is a rational and moral being, he is
different from other creatures on earth and therefore entitled to certain rights and freedoms which other creatures do not enjoy”

Tristan August 19, 2010 at 1:31 am

“So you think rights can be derived in an umambiguous way using logic, and information about the kind of beings people are?”

Hegel.

Milan August 19, 2010 at 9:18 am

That’s not a useful answer.

While it may be possible to say ‘people are mortal and want to live, therefore they have a right to life’ it seems much harder to derive more abstract rights using only logic and the characteristics of human beings.

There is also the unaddressed question of what to do when rights conflict, as they inevitably will.

I maintain that using ‘rights’ as a kind of shorthand makes sense, including when they are incorporated into legal charters. At the same time, ethics must ultimately be grounded in a more nebulous sense of what is good for people in general.

Milan August 19, 2010 at 9:19 am

because man is a rational and moral being, he is different from other creatures on earth

Does this mean that animals other than humans have no rights at all? Does it matter if the animal in question is a dolphin, rather than a jellyfish?

XUP August 19, 2010 at 1:48 pm

I think it DOES mean that animals don’t have rights. We certainly treat animals like they have no rights. In bioethics there are degrees of rights depending on your state of life. So a 3 month old fetus has less rights than a 9 month old fetus. And baby has less rights than an adult. And someone on life support has less rights than someone self-functioning. And an elderly person has less rights than a younger adult. And a health person has less rights than a sick person. By that formula, a dolphin may have some degree of rights, but they’re way down the ladder and a jellyfish probably wouldn’t even make it to the ladder. And if it did, it would likely slip right off — since it’s so slimey and all.

Byron Smith August 19, 2010 at 2:01 pm

Rights based ethical discourse is, as you have noted, limited in its ability to negotiation between apparently conflicting rights. I’ve argued that rights are best understood as a stop sign, not a road map.

Byron Smith August 19, 2010 at 2:02 pm

:-(
Multiple typos there. Must be getting tired.
• Rights-based
• ability to negotiate between

Tristan August 20, 2010 at 1:52 am

“That’s not a useful answer.

While it may be possible to say ‘people are mortal and want to live, therefore they have a right to life’ it seems much harder to derive more abstract rights using only logic and the characteristics of human beings.”

It’s a serious answer. Sure, it’s a joke just to say “Hegel”, but if you want to see a logical account of liberal rights built up from the kind of experience we have (beginning in the mere experience of any object), Hegel did that. It’s in Phenomenology of Mind, and Philosophy of Right. It would take too much space for me to go through all the arguments in a blog comment – but it’s no good denying that anyone has worked this out.

Tristan August 20, 2010 at 1:54 am

Why would anyone expect a logical derivation of the rights of man to fit in a blog comment, anyway?

Tristan August 20, 2010 at 1:59 am

“Rights based ethical discourse is, as you have noted, limited in its ability to negotiation between apparently conflicting rights. ”

There is no reason to think that conflicting rights is a limit for rights based discourse. It’s just true that rights conflict, this happens all the time. Any non-rights based ethical discourse would fail to grasp the essential event of conflicting rights. If you want to take seriously events where peoples rights come into conflict, switching to Utilitarian discourse doesn’t do you any good unless you can get the parties involved to stop believing in rights.

Tristan August 20, 2010 at 2:26 am

“I maintain that using ‘rights’ as a kind of shorthand makes sense, including when they are incorporated into legal charters. At the same time, ethics must ultimately be grounded in a more nebulous sense of what is good for people in general.”

In reality, rights are things people fight and die to attain, and fight and die to protect when they are put in jeopardy. The French Revolution was not made for “shorthand”.

Byron Smith August 20, 2010 at 9:28 am

If you want to take seriously events where peoples rights come into conflict, switching to Utilitarian discourse doesn’t do you any good unless you can get the parties involved to stop believing in rights.
I agree. But there are more options than just rights or utilitarianism.

Milan October 29, 2010 at 9:53 am

There is some good discussion of this over on The Commons:

To a certain extent I agree with Milan. From one point of view, there is nothing inherent in human rights, nothing written into the universe that says “freedom of speech” is a Right.

And, yet, on the other hand there is. As Milan says, Rights are an abstract shorthand for situational ethics. True enough. But human ethics are governed by some true facts written into the universe that determine the “rightness or wrongness” of a certain ethical situation.

Here I mean the fundamentals of physics and of human physiology (e.g.: a fist can smash a face). These are incontrovertible ‘laws’ written into the universe, and they are necessarily assumed in any ethical/morality conversation. And why, for the most part, there is widespread agreement on “human rights”.

When there is disagreement over “Rights”, it is usually when ethical or moral codes (usually Religion-derived) detour from reality. Especially when the metaphysics of an “afterlife” are held to be as valid and meaningful as natural/material human experience. In these cases you are bound to have serious problems, disagreements, and general ethical strife.

Byron Smith October 30, 2010 at 6:23 pm

That final paragraph is way too generalised. The historical rise of “rights discourse” to international prominence was largely spurred by the events of the second world war which prompted the UN declaration of human rights in 1948.

However, the roots of the concept of rights lie in debates about justice within medieval scholastic theology.

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